GSK argues tube cap should cut penalties in ACCC Voltaren case
Competition & Consumer Protection June 8, 2018 9:35 pm By Miklos Bolza | Sydney

GlaxoSmithKline is pushing for lower penalties in a case brought by the Australian Competition and Consumer Commission alleging the pharma giant breached the Australian Consumer Law in the marketing for its Voltaren Osteo Gel and Voltaren Emulgel pain relief products.

In the Federal Court Friday, GSK’s barrister, Richard Cobden, SC, shifted the focus away from the chemical formula of the two products, which has been found to be the same, and onto the packaging, which he said had been especially designed for osteoarthritis sufferers.

The ACCC has accused GSK and Novartis of making false and misleading claims in marketing their Osteo Gel and Emulgel products. The regulator has said the products were promoted as two separate treatments, for osteoarthritis and soft tissue sports injuries, respectively, despite being chemically identical.

Both firms have admitted contravening the Australian Consumer Law with “historical packaging” and website information, and are now set to debate liability and penalties in an upcoming trial scheduled for July 30 and 31.

Cobden told Justice Robert Bromwich that the shape of Osteo Gel’s cap was designed to make it easier for osteoarthritis suffers to open the tube, saying that “The cap is effective and proved by research to be effective to the target audience.”

In shifting the focus onto the new packaging, which came onto the market in March 2017, GSK has brought another matter for consideration into the impending liabilities and penalties hearing.

“That’s an interesting argument in that it’s not about the formulation,” Judge Bromwich said.

The ACCC’s barrister Kate Morgan, SC, dismissed the argument, saying that the cap had always been included in GSK’s admissions. If the company continued with this line of reasoning and admitted new affidavits along with it, the hearing would not finish within the scheduled two days, she said.

Judge Bromwich agreed and pencilled in a third day to accommodate the additional witnesses and cross-examination, if required.

After the ACCC’s intervention, GSK has now ceased selling Osteo Gel, avoiding the need for the regulator to file an interlocutory injunction against the company. A final injunction may also “not be required,” Morgan told the court.

A spokesperson for GSK confirmed to Lawyerly that the company stopped supplying Voltaren Osteo Gel 1% to the Australian market on May 31.

“In November 2018 (before the Court proceedings were commenced) we notified the ACCC that this action was being taking. The ACCC’s ongoing concerns in relation to this product were taken into account together with a range of commercial factors,” the spokesperson said.

Reckitt Benckiser, which manufactures Nurofen, was ordered by the Full Federal Court in December 2016 to pay $6 million for misleading customers about its Nurofen pain products. Reckitt led consumers to believed its different Nurofen products were formulated to treat specific types of pain.

Bird & Bird’s attorney Lynne Lewis told Lawyerly in February that GSK and Novartis accepted “some of the ACCC’s concerns” about Voltaren’s old packaging in light of the Reckitt Benckiser decision. But, she said, the companies would defend themselves against the commission’s claims relating to current labelling.

Morgan is from Tenth Floor Chambers while Cobden is from Nigel Bowen Chambers.

The ACCC is represented by Webb Henderson. GSK and Novartis are represented by Bird & Bird.

The case is Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (ACN 603 310 292) & Anor.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.