AFT Pharmaceuticals (AU) Pty Limited v Reckitt Benckiser (Australia) Pty Limited

In the case of AFT Pharmaceuticals (AU) Pty Limited v Reckitt Benckiser (Australia) Pty Limited, the respondent Reckitt Benckiser (Australia) Pty Limited challenged advertisements made by AFT Pharmaceuticals (AU) Pty Limited which compared the pain relief efficacy of Maxigesic, an analgesic product manufactured by AFT, against Nuromol, an analgesic product manufactured by Reckitt. The advertisements suggested that Maxigesic provided stronger and more effective relief from all pain compared to Nuromol and other over-the-counter paracetamol/ibuprofen combinations. The dispute was heard and determined by the Federal Court of Australia.

The central legal issue before the court was whether the advertisements contravened the Australian Consumer Law by making misleading or deceptive representations that lacked an adequate scientific foundation. Specifically, the court had to decide if there was sufficient scientific evidence to support the unqualified claim that Maxigesic provided stronger and more effective relief from all pain compared to Nuromol and other over-the-counter paracetamol/ibuprofen combinations.

The court found that Reckitt bore the onus of proving that there was no adequate scientific foundation for the representations made by AFT. This did not require Reckitt to definitively prove that Maxigesic does not provide stronger and more effective relief from all pain than Nuromol and other OTC paracetamol/ibuprofen combinations at their respective recommended daily doses. Rather, it was sufficient for Reckitt to demonstrate that, considering the totality of the available scientific evidence, there was no adequate scientific foundation for AFT's claim. The court upheld the primary judge’s conclusion that there was no adequate scientific foundation for the impugned representations, affirming that the primary judge correctly applied the relevant legal principles. As a result, the appeal was dismissed, and AFT was ordered to pay Reckitt’s costs of the appeal.