GSK and Novartis taken to court over 'misleading' pain relief products

Thursday, 07 December, 2017

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The Australian Competition & Consumer Commission (ACCC) has instituted proceedings in the Federal Court of Australia against GlaxoSmithKline Healthcare Australia (GSK) and Novartis Consumer Health Australasia (Novartis), alleging they made false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products.

GSK, a leader supplier of over-the-counter analgesic products in Australia, acquired Novartis’s portfolio of Voltaren products in 2016 and has been responsible for marketing and selling these products ever since. Both Voltaren Osteo Gel and Emulgel contain the same active ingredient, diclofenac diethylammonium gel 11.6 mg/g, which acts in a non-specific manner to reduce local pain and inflammation wherever it is applied.

The ACCC alleges that Novartis and GSK represented via product packaging that Osteo Gel was specifically formulated for treating osteoarthritis conditions and was more effective than Emulgel to treat those conditions, despite the fact that the two products are identically formulated. GSK did amend the Osteo Gel packaging to include the statement ‘Same effective formula as Voltaren Emulgel’ directly under the product name, but the ACCC claimed the amended packaging was also likely to be misleading.

“We allege that consumers are likely to have been misled into purchasing Osteo Gel thinking that it is different to Emulgel and more effective for treating osteoarthritis conditions, when this is not the case,” said ACCC Chairman Rod Sims.

“In fact, the product has an identical formulation to Emulgel, and both products are equally effective in treating not only osteoarthritis, but also a range of other pain conditions.”

Price sampling conducted by the ACCC at supermarkets and pharmacies found that Osteo Gel is often sold at a significant price premium to Emulgel. For example, Osteo Gel 150 g was found in-store at up to $7.50 (or 33%) more than Emulgel 150 g. The recommended retail price of Osteo Gel 150 g was $28.99 compared with $25.99 for Emulgel 150 g.

“We allege GSK and Novartis engaged in a deliberate commercial strategy to differentiate the products in a way that was likely to mislead consumers,” said Sims.

“The alleged conduct is particularly concerning, given the significant penalties handed down by the court against the makers of Nurofen for what we consider to be similar conduct,” he continued. In December 2016, the Full Federal Court ordered Reckitt Benckiser (Australia) to pay a penalty of $6 million for making representations that Nurofen Specific Pain products were each formulated to specifically treat a particular type of pain, when this was not the case.

As for the current case, the ACCC is seeking declarations, injunctions, pecuniary penalties, a publication order, the imposition of a compliance program and costs.

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