Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724

Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724

The respondents' marketing of Voltaren Osteo Gel as specifically formulated for osteoarthritis, distinct from Emulgel, was misleading and deceptive in contravention of ss 18, 29(1)(g), and 33 of the Australian Consumer Law, as both products were identical in formulation; agreed penalties and declarations are appropriate and proportionate to the seriousness, duration, and extent of the conduct, and costs should be apportioned to reflect each party's partial success.

Jurisdiction
Australia
Judgment Date
28 May 2020
Procedural Posture
Civil / Penalty and Costs Determination Following Partial Admissions and Contested Liability Hearing
Outcome
Declarations made of contravention; penalties as agreed; costs apportioned as specified; other relief sought dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'false or Misleading Representations' 'liability for Misleading Packaging' 'section 18 of the Australian Consumer Law' 'pecuniary Penalties' 'costs']
['consumer Law' 'commercial Law'] ['misleading or Deceptive Conduct' 'false or Misleading Representations' 'liability for Misleading Packaging' 'section 18 of the Australian Consumer Law' 'pecuniary Penalties' 'costs']

Case Brief

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Procedural Posture

Civil / Penalty and Costs Determination Following Partial Admissions and Contested Liability Hearing

Legal Issues

  1. 1 ['Whether GSK and Novartis contravened ss 18, 29(1), and 33 of the Australian Consumer Law by marketing and selling Voltaren Osteo Gel and Emulgel as materially different when they were the same product.' 'What penalties and declarations are appropriate for the admitted contraventions.' 'What costs orders should be made given mixed results in the proceedings.']

Ratio Decidendi

The respondents' marketing of Voltaren Osteo Gel as specifically formulated for osteoarthritis, distinct from Emulgel, was misleading and deceptive in contravention of ss 18, 29(1)(g), and 33 of the Australian Consumer Law, as both products were identical in formulation; agreed penalties and declarations are appropriate and proportionate to the seriousness, duration, and extent of the conduct, and costs should be apportioned to reflect each party's partial success.

Court Disposition

Declarations made of contravention; penalties as agreed; costs apportioned as specified; other relief sought dismissed.

Orders

  • ['GSK to pay a pecuniary penalty of $1,500,000 for conduct declared in orders 1 and 3.' 'Novartis to pay a pecuniary penalty of $3,000,000 for conduct declared in orders 2, 4 and 5.' "Applicant's other relief sought in Originating Application (specified paragraphs) dismissed." "Respondents pay applicant's costs up...