GSK and Novartis in court for alleged misleading representations

GSK is being accused of marketing and selling two products with supposed differing purposes yet with both having identical formulation.

The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court of Australia against GlaxoSmithKline Healthcare Australia and Novartis Consumer Health Australasia, alleging they made false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain-relief products.

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

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

“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 Chair Rod Sims said. “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. “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 said. “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.”

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

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