Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2)

In the case of Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2), the Australian Competition and Consumer Commission (ACCC) alleged that GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (GSK) and its predecessor, Novartis, engaged in misleading and deceptive conduct by implying that there were material differences between two of their products, Osteo Gel and Emulgel, when in fact they were the same. The Court was required to decide on the appropriate declarations and penalties to be made following the admitted contraventions of sections 18, 29(1) and 33 of the Australian Consumer Law. Additionally, the Court had to determine the costs orders between the parties.

The Court found that GSK and Novartis had indeed misled consumers by implying there were differences between Osteo Gel and Emulgel. Despite their active ingredient being identical and their contents the same, the companies marketed them differently, with Osteo Gel being promoted for the treatment of osteoarthritis and Emulgel for general pain and inflammation. This created a misleading impression among consumers, contrary to the Australian Consumer Law. The Court approved the agreed form of declaration and penalty of $4.5 million. The Court also addressed the costs orders, determining that GSK and Novartis should pay the applicant’s costs up to a certain date, with the applicant paying the respondents' costs from that date up to the date of the liability judgment, and GSK and Novartis paying costs thereafter.

The Court’s decision included specific orders for penalties and costs. GSK was ordered to pay a penalty of $1.5 million, and Novartis was ordered to pay a penalty of $3 million. The Court also outlined detailed costs orders, specifying the periods for which each party was to pay costs. The parties were granted leave to submit draft orders for a lump sum costs determination by a registrar.