GSK says it’s disappointed after the ACCC announced it was taking it and Novartis to court over alleged misleading representations

The ACCC announced that it has instituted proceedings in the Federal Court of Australia against GlaxoSmithKline Healthcare Australia Pty Ltd and Novartis Consumer Health Australasia Pty Ltd, alleging they made false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products.

In 2016 GSK acquired Novartis’ portfolio of Voltaren products and has been responsible for marketing and selling Voltaren products since that time.

The ACCC alleges that Novartis and GSK represented that Osteo Gel was specifically formulated for treating osteoarthritis conditions, and was more effective than Emulgel to treat those conditions, when the two products are identically formulated.

Both products contain the same active ingredient, diclofenac diethylammonium gel 11.6mg/g, which acts in a non-specific manner to reduce local pain and inflammation wherever it is applied, the ACCC says.

“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,” ACCC Chairman Rod Sims says.

“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 150g was found in-store at up to $7.50 (or 33%) more than Emulgel 150g. The recommended retail price of Osteo Gel 150g was $28.99 compared with $25.99 for Emulgel 150g.

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

“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 says.

The ACCC is seeking declarations, injunctions, pecuniary penalties, a publication order, the imposition of a compliance program and costs.

GSK said in a statement today that “we are disappointed the ACCC has decided to commence proceedings against us”.

“We have been cooperating with them and proactively trying to understand their concerns related to our products, however to date they have not provided clarity about the basis for their concern,” it said.

“Our experience tells us that people self-select pain relief (OTC medicines) based on their symptoms and/or a healthcare professional’s recommendation.

“We believe the case of Voltaren Osteo Gel 1% is an example of this. While it contains the same effective formulation as Voltaren Emulgel, we believe the design of the packaging helps people with osteoarthritis open the cap more easily and the instructions for use reflect the TGA approved instructions for use in osteoarthritis. 

“We were of the view the product name reflects this.”

GSK says that recent actions by the ACCC provided greater clarity around the expectations of industry regulators and consumers. 

“We responded to this and proactively made changes to Voltaren Osteo Gel 1% packs to make it clearer that the formulation is the same as Voltaren Emulgel and to seek to ensure we continue to meet the expectations of regulators and consumers.”