Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676

Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676

The ACCC bore the onus of proving that the revised Osteo Gel packaging used from March 2017 to May 2018 contravened ss 18, 29(1)(g) or 33 of the Australian Consumer Law. Although the earlier packaging contraventions were relevant context, the revised packaging required a fresh assessment and was not a disclaimer case with a starting point of contravention. On the balance of probabilities, the additional words 'Same effective formula as Voltaren Emulgel', their placement, the enlarged formula statement, and the genuine differences of cap and use-duration information were just sufficient to prevent the overall impression that Osteo Gel was specifically formulated for osteoarthritis, solely...

Jurisdiction
Australia
Judgment Date
17 May 2019
Procedural Posture
Consumer Law Proceeding Alleging Contraventions of the Australian Consumer Law / Judgment on Disputed Contraventions Before Separate Penalty Hearing for Admitted Contraventions
Outcome
The ACCC failed to establish the disputed contraventions for the revised Osteo Gel packaging from March 2017 to May 2018. The matter was listed for further case management and a later penalty hearing concerning admitted contraventions.
Legal Topics
['misleading or Deceptive Conduct' 'false or Misleading Representations' 'conduct Liable to Mislead the Public' 'pharmaceutical Product Packaging' 'differential Marketing of Identical Formulation Products' 'australian Consumer Law Ss 18, 29(1)(g) and 33']
['consumer Law' 'competition and Consumer Protection' 'regulator Proceedings'] ['misleading or Deceptive Conduct' 'false or Misleading Representations' 'conduct Liable to Mislead the Public' 'pharmaceutical Product Packaging' 'differential Marketing of Identical Formulation Products' 'australian Consumer Law Ss 18, 29(1)(g) and 33']

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Procedural Posture

Consumer Law Proceeding Alleging Contraventions of the Australian Consumer Law / Judgment on Disputed Contraventions Before Separate Penalty Hearing for Admitted Contraventions

Legal Issues

  1. 1 ['Whether the revised Osteo Gel packaging used from March 2017 to May 2018, in the context of Emulgel packaging, conveyed that Osteo Gel was specifically formulated to treat osteoarthritis, solely or specifically treated osteoarthritis, or was more effective than Emulgel for osteoarthritis.' "Whether GSK's reference to 'Same effective formula as Voltaren Emulgel' and other packaging changes sufficiently avoided misleading, deceptive, false, or publicly misleading conduct under ss 18, 29(1)(g) and 33 of the Australian Consumer Law." 'What use should be made of earlier packaging and website representations admitted to be contraventions when assessing the revised packaging.' 'Whether the ACCC was entitled to injunctions, publication orders or compliance orders in light of admitted and disputed contraventions.']

Ratio Decidendi

The ACCC bore the onus of proving that the revised Osteo Gel packaging used from March 2017 to May 2018 contravened ss 18, 29(1)(g) or 33 of the Australian Consumer Law. Although the earlier packaging contraventions were relevant context, the revised packaging required a fresh assessment and was not a disclaimer case with a starting point of contravention. On the balance of probabilities, the additional words 'Same effective formula as Voltaren Emulgel', their placement, the enlarged formula statement, and the genuine differences of cap and use-duration information were just sufficient to prevent the overall impression that Osteo Gel was specifically formulated for osteoarthritis, solely...

Court Disposition

The ACCC failed to establish the disputed contraventions for the revised Osteo Gel packaging from March 2017 to May 2018. The matter was listed for further case management and a later penalty hearing concerning admitted contraventions.

Orders

  • ['The parties furnish agreed or competing procedural orders for the penalty hearing of the contraventions admitted by the respondents at least 48 hours prior to the next case management hearing.' 'The proceeding be listed for case management at 9.00 am on Friday 31 May 2019, or such later date as may be fixed.']