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Nurofen fine for misleading consumers increased to $6 million

Lucy Cormack

The company that manufactures Nurofen has been fined $6 million for misleading consumers with its specific pain relief range, the highest corporate penalty ever awarded for misleading conduct under the Australian Consumer Law.

Pharmaceutical company Reckitt Benckiser was initially fined $1.7 million in December last year, after it was taken to the Federal Court by the Australian Competition and Consumer Commission. 

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Nurofen maker Reckitt Beckinser fined $1.7m

The company has been fined more than $1 million for misleading consumers.

The penalty related to allegations the company had engaged in misleading or deceptive conduct by claiming that Nurofen Specific Pain products were formulated to specifically treat a particular type of pain, when this was not the case.

However, on Friday, the Federal Court increased the fine to $6 million, following an appeal from the ACCC, which argued that $1.7 million in penalties did not act as an "adequate deterrent" for a company the size of Reckitt Benckiser.

​"Over a period of nearly five years ... Reckitt Benckiser repeatedly engaged in the contravening conduct, selling 5.9 million packets of the so-called Nurofen specific pain range products," the Federal Court judgment states.

"As such the theoretical maximum penalty for the contraventions ... was 'many, many millions of dollars'."

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In their joint decision, Justices Jayne Jagot, David Yates and Robert Bromwich stated that the Nurofen products claiming to target "migraine pain", "tension headache", "period pain" and "back pain" all provided identical doses of an active ingredient equivalent to 200mg of ibuprofen.

"Moreover the products were sold at double the price of standard Nurofen ... [and] contrary to the representations, ibuprofen does not 'target' any particular kind of pain."

The objective of the increased penalty, the judgment said, was to "ensure Reckitt Benckiser and other 'would-be wrongdoers' think twice and decide not to act against the strong public interest". 

ACCC chairman Rod Sims described the decision as "a great win for Australian consumers".

"We are running a campaign to end misleading conduct by large companies. We think this helps send that message," Mr Sims told Fairfax Media. 

He said the penalty reflected the widespread nature of the conduct and the substantial sales and profit that were made.

"This is a great penalty within the current framework, but we are going to be pushing for a much higher level of penalty under Australian Consumer Law. At the moment it's up to $1.1 million per breach. We think it should be increased to up to $10 million," Mr Sims said.

It is estimated that 5.9 million sales of the four products over five years yielded revenue of about $45 million to the pharmaceutical company.

In a statement, Nurofen said it was "disappointed" by the decision, as it considered the original $1.7 million penalty was appropriate.

"The Specific Pain Range contains ibuprofen lysine - a unique formulation in the Nurofen range that is absorbed faster than the regular ibuprofen contained in standard Nurofen." 

Nurofen said it "did not intend to mislead consumers", but recognised that it "could have done more to assist our consumers ... [and] to show that each of the products in the range is equally effective for the other pains indicated on the Nurofen Specific Pain Range packaging."'

The brand is considering its position with its legal advisers.