The Federal Court has found GSK and Novartis breached Australian law over Voltaren marketing… a finding welcomed by GSK
The Australian Competition and Consumer Commission announced on Friday that GlaxoSmithKline Consumer Healthcare Australia and Novartis Consumer Health Australasia breached the law by making false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products.
GSK had acquired Novartis’ portfolio of Voltaren products in March 2016, and has been responsible for marketing and selling the range since.
It changed Osteo Gel’s packaging in March 2017 and discontinued the product in May 2018.
The Court found that from January 2012 to March 2017, Novartis and then GSK marketed Osteo Gel as being specifically formulated and more effective than Emulgel in treating osteoarthritis related pain and inflammation.
However, the two products were “essentially the same,” says the ACCC: both containing the same active, diclofenac diethylammonium gel 11.6mg/g, which acts in a non-specific manner to reduce local pain and inflammation where applied.
An ACCC investigation found that despite having the same active ingredients, Osteo Gel was often sold at a significantly higher retail price than Emulgel. For example, Osteo Gel 150g cost 33% more than Emulgel 150g in some stores.
“Novartis and GSK misled osteoarthritis sufferers into buying the more expensive Osteo Gel thinking that it was more effective than Emulgel for treating their symptoms, when this is not the case,” ACCC Commissioner Sarah Court said.
The claims were made on product packaging and the Voltaren website by both companies and Novartis also made the claims on the My Joint Health website.
“This decision serves as a warning to all businesses that misleading consumers into thinking that products are specifically formulated to treat or target certain conditions when this is not the case can lead to serious consequences,” Ms Court added.
“Novartis and GSK’s conduct continued after the ACCC’s successful action against the makers of Nurofen for similar conduct involving its pain relief products. In this case both gels are identical and are equally effective in treating osteoarthritis symptoms and a range of other pain conditions.”
In March 2017 GSK amended the Osteo Gel packaging to include the words “Same effective formula as Voltaren Emulgel”.
The Court found that while clearer wording would have been preferable, these additional words and other changes made to the packaging meant that the same misleading representations were not made.
“An average, sensible consumer with osteoarthritis, or considering buying a treatment product for such a person, might have stopped and wondered,” the Commissioner noted.
“They might have questioned what the difference was between Emulgel and Osteo Gel. Upon reading the additional words on the Osteo Gel packaging, which were, only just, sufficiently clear and prominent, they most likely would have realised that the gel in each was the same, or at least that there was no material difference between the formula for Emulgel and the formula for Osteo Gel.
“On a reasonably finely balanced basis, I am unable to conclude that the overall impression created by the revised packaging is that of a product that has been specifically formulated for treating osteoarthritis, or that solely or specifically treats osteoarthritis, or that is more effective.”
Thus between March 2017 and May 2018, GSK did not breach the Australian Consumer Law, she said.
GSK Consumer Healthcare Australia issued a statement saying it was pleased with the Court’s decision regarding its updated packaging for Voltaren Osteo Gel 1% between March 2017 and May 2018, when it ceased supplying the product.
“We take consumer law seriously,” it said.
“Last year, we admitted allegations in relation to certain historical packaging [that was supplied to the Australian market before March 2017] and some historical website content related to Voltaren Osteo Gel 1%.
“It is important to clarify that certain actions taken by the ACCC in the recent years provided greater clarity around the expectations of companies marketing medicinal products.
“We responded to this clarification proactively when concerns were raised and made changes to Voltaren Osteo Gel 1% packaging to help ensure we continued to meet the expectations of regulators and consumers.”