Summary
GlaxoSmithKline Australia Pty Ltd and GlaxoSmithKline Consumer Healthcare Australia Pty Ltd have comparative advertising case under the thing name “Panadol “. The dynamic settling in all Panadol things is paracetamol (for the most part called acetaminophen). So, the Comparative Advertising works best when it will be possible to continue the study to research on GlaxoSmithKline Australia Pty Ltd and GlaxoSmithKline Consumer Healthcare Australia Pty Ltd.
- Panadol v Nurofen
Comparative Advertising works best when it is the matter of Misleading Advertising
1.1 Company Background
This is a case of focusing Comparative Advertising works best when it is research on between Panadol and Nurofen.[1] GlaxoSmithKline is a medical company producing and selling Panadol, and Reckitt Benckiser is their competitor company which makes and sells Nurofen. These two medicines are both to relief pain, and the primary ingredient of Panadol is paracetamol, while the active ingredient of Nurofen is ibuprofen.[2]
1.2 Facts and Arguments for Both Parties
During August to December 2015, Reckitt commences an advertisement in many places, including magazines, in-store advertisements, trade publications and TV commercials. Each comparative advertisement contains the comparative content between the active ingredients in Panadol and Nurofen.[3] In this comparative advertising campaign, Reckitt Benckiser mainly represented these three things, Nurofen is better than paracetamol and Panadol for common headaches; Nurofen gives faster pain relief for common headaches than does Panadol and paracetamol; and Nurofen and ibuprofen perform in a superior manner to paracetamol and Panadol in relieving pain for headaches including tension-type headaches (TTH).[4]
Based on the comparative advertising campaign, on 11 September 2015, GlaxoSmithKline Australia Pty Ltd and GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (Glaxo) alleged Reckitt Benckiser (Australia) Pty Limited that the advertisement of Reckitt has engaged in misleading and deceptive conduct according to the Section 18 of the Australian Consumer Law (ACL) and has made false representations in Section 29(1)(a) and Section 29(1)(g) of the Australian Consumer Law (ACL). In addition, Glaxo also claims unspecified orders under section 237 of the ACL, but finally it abandoned this claim.[5]
1.3 Reasons for Judgement
The representations were concerning future matters, since the advertisement said to the consumer, ‘if you take Nurofen, you will faster and more effective relief from pain than Panadol does’. This is the reason that Justice Foster need Reckitt to prove there is a foundation for the representation at the time it was made. If Reckitt cannot offer the proving evidence, then GSK should prove it was unreasonable.[6] In 2015, GSK considered the evidence of three “meta-analyses” (the Moore Study and two Cochrane reviews from 2015 and 2016), three clinical trials (the Schachtel Study, Study NL9701 and the NCT Study), and testimony from the experts to prove if the body of science that Reckitt relied on is reasonable. “Meta-analyses” is a systematic review of different literature to identify and appraise high quality evidence on research questions through the computer program, and it is the “gold standard” for estimating and comparing medication efficacy, so “meta-analyses” is professional and credible.[7]
However, in terms of efficacy and speed of treatment comparing paracetamol to ibuprofen, only in the Schachtel Study, which was a single clinical trial conducted in 1996, found that ibuprofen (400mg) had statistically significant superiority in muscle contraction headaches, comparing to paracetamol (1000mg).[8] Faced to this condition, Reckitt defend GlaxoSmithKline’s allegations that they primary depend on Schachtel Study, and there is no other clinical trial can prove it is wrong or put those results into doubt.[9] Thus, they just simply to use and reproduce the results of the Schachtel Study as the evidence to claim that Nurofen with ibuprofen offers faster and more effective relief from pain than does Panadol with paracetamol.[10]
After investigating, on 8 January 2018, Justice Foster claimed that since there is only one clinical trial proves Nurofen provided faster and more effective relief from the pain of headache than does Panadol while two other studies did not prove the one positive clinical trial, and there would be no possible authoritative comparison in the present state of scientific knowledge, according to Section 18, Section 29(1)(a) and Section 29(1)(g) of the Australian Consumer Law, Reckitt has engaged in misleading or deceptive or likely to mislead or deceive costumers, or made false representations through the comparative advertising campaign.[11]
1.4 Judgement and Implications
For these reasons, Justice Foster suggested to grant declaratory relief and a permanent injunction against Reckitt, moreover, it was ordered to pay costs of GSK, and Reckitt has appealed the decision to the Full Federal Court.[12]
From this case, it is clear that Reckitt had scientific evidence to prove its advertisement, but Court is willing to consider the whole body of scientific basis available to that business at the time it was made.[13] Furthermore, this case highlights that adequate basis is important when the business engages in comparative advertising, while sometimes single study is not enough to support its claims in its advertising, it may still be misleading or deceptive consumers, and other studies may lead to an opposite side. In addition, when business designs an advertising campaign, it should be especially careful to make a conclusion or to claim that their product is better than their competitor’s, and it is also a warning to pharmaceutical companies in Australia that they must comply with the ACL when selling products to consumers. [14]
Lessons for business
Although there are no specific laws to regulate comparative advertisings which are completely legal, it may cause misleading or deceptive consumers to some extent, which means it will not comply with related sections in Australian Consumer Law.[15] However, it is difficult to develop an overview that would allow advertisers and manufactures to avoid misleading or deceptive consumers due to comparative advertising when promoting products. But, through the two cases mentioned above, some suggestions can still be obtained when advertising. The first suggestion is to be as clear as possible when competing products are being advertised to consumers. The second suggestion is to ensure that the results of the comparative product test are correct in the advertisement. The last suggestion is that the test method used in the advertisement must reasonably reflect the advantages and disadvantages of the comparative product.
Conclusion
The lessons from the above two cases it that The concluding remark for the case Glaxo vs Reckitt is that engaged in misleading and deceptive conduct in contravention by the Consumer law is that is totally unethical and violation law. And, the frim who is responsible to the engaged in misleading and deceptive conduct without the form of scientific knowledge or just copying the module of the other company like Glaxo and the selling or distribution of such product is illegal. And, there must have legal actions to sue and claim compensation and that is happened for Glaxo and Reckitt.
References (Comparative Advertising works best when)
Beard, K. F. (2018). Comparative Advertising: History, Theory, and Practice. Melbourne: The Rowman & Littlefield Publishing Group,.
Commbar. (2018, 03 05). Commbar Matters: Panadol v Nurofen: what a headache! Retrieved from Commbar Matters: < http://www.commbarmatters.com.au/2018/03/05/panadol-v-nurofen-what-a-headache/>
Gupta, R. (2012). Advertising Principles and Practice: For Students of B Com, BBA, MBA and Other Professional Courses. Melbourne.
Kapnoullas, S. a. (1995). “The Legal Regulation of Comparative Advertising. QUT Law Review, 11-18.
Comparative Advertising works best when
Footnotes
[1] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
[2] Commbar Matters, Panadol v Nurofen: what a headache! (2018, March 5)
< http://www.commbarmatters.com.au/2018/03/05/panadol-v-nurofen-what-a-headache/>
[3] Ashurst, Nurofen advertising campaign causes more pain for Reckitt, (2018, March 28)
< https://www.ashurst.com/en/news-and-insights/insights/ip-at-ashurst-march-2018-edition–nurofen-reckitt/>
[4] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
[5] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
[6] MST lawyers, Misleading and Deceptive Advertising: Avoiding the Headache (2018, March 14) < https://www.mst.com.au/misleading-and-deceptive-advertising-avoiding-the-headache/>
[7] Ashurst, Nurofen advertising campaign causes more pain for Reckitt, (2018, March 28)
< https://www.ashurst.com/en/news-and-insights/insights/ip-at-ashurst-march-2018-edition–nurofen-reckitt/>
[8] Ashurst, Nurofen advertising campaign causes more pain for Reckitt, (2018, March 28)
< https://www.ashurst.com/en/news-and-insights/insights/ip-at-ashurst-march-2018-edition–nurofen-reckitt/>
[9] Ashurst, Nurofen advertising campaign causes more pain for Reckitt, (2018, March 28)
< https://www.ashurst.com/en/news-and-insights/insights/ip-at-ashurst-march-2018-edition–nurofen-reckitt/>
[10] Commbar Matters, Panadol v Nurofen: what a headache! (2018, March 5)
< http://www.commbarmatters.com.au/2018/03/05/panadol-v-nurofen-what-a-headache/>
[11] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
[12] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
[13] MST lawyers, Misleading and Deceptive Advertising: Avoiding the Headache (2018, March 14) < https://www.mst.com.au/misleading-and-deceptive-advertising-avoiding-the-headache/>
[14] Resolution Legal Melbourne, Misleading Advertising—Is Nurofen Better than Panadol? (2018, March 15) < https://www.resolutionlegal.melbourne/misleading-advertising/>
[15] Brendan Sweeney, Mark Bender and Nadine Courmadias, Marketing and the law (LexisNexis Butterworths, 5th ed, 2015).
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