Nurofen’s maker fined $1.7m

The maker of Nurofen, Reckitt Benckiser, has been fined $1.7 million for breaching consumer laws.

In 2015, the Federal Court found Nurofen’s “specific pain range” misled consumers because they all contained the same active ingredient and did the same thing.

The Australian Competition and Consumer Commission (ACCC) had asked the Federal Court to impose a fine of $6 million.

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The court earlier found that Reckitt Benckiser’s range of “pain specific” products all contained the same active ingredient — ibuprofen lysine 342mg — and did the same thing.

The products promised to relieve either back pain, period pain, tension headache or migraine, even though it is not possible to target pain relief in such a manner.

But during the hearing to determine penalties, lawyers for Reckitt Benckiser said “rational” consumers would not think a pain-specific product was any more effective than a regular one.

However, Justice James Edelman found that as the products were widely available at 5,500 pharmacies and 3,000 other retail outlets it was unlikely many consumers would have a high degree of pharmaceutical knowledge.

Justice Edelman said in deciding upon a fine he took into account other similar cases and that the products actually did provide pain relief.

“The products were effective to treat the pain that they represented so that the only potential effect of the conduct on consumers or competitors was monetary,” he said.

“Although the packaging and website promotion was designed for profit, the contravening conduct did not cause any physical harm to any consumer.”

The barrister for the ACCC, Katrina Banks-Smith SC, said Reckitt Benckiser made “substantial profits” from its misleading marketing and a large fine was warranted.

“There needs to be some serious taking away of profit,” she said.

Ms Banks-Smith SC said consumers had been financially harmed over the space of five years as the pain-specific products were sold at almost double the price of Nurofen’s standard range.

Justice Edelman said it was more important to focus on the fact that Renckitt Benckiser’s intention was to make a profit by misleading customers rather than how large that profit was.

“Like most marketing and packaging endeavours, it was plainly engaged with the intention of increasing profits,” he said.

“To that extent, deterrence is required even if it were the case that the conduct did not ultimately result in any profit.”

The ACCC also argued Nurofen’s competitors were disadvantaged as there was less shelf space available.

In December the company was given three months to withdraw the products from sale.

It agreed to place stickers on the products in the interim to correct the misleading claims made on the packaging.

However, lawyers for the ACCC said those stickers were being obscured in some supermarkets.

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