Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd

In this case, the Australian Competition and Consumer Commission (ACCC) brought an action against GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (GSK) for allegedly contravening the Australian Consumer Law by suggesting that "Osteo Gel" was specifically formulated to treat osteoarthritis through revised packaging. The ACCC sought declarations of contravention, injunctions, publication orders, compliance orders and pecuniary penalties for the admitted contraventions. GSK argued that the representations and conduct engaged in from March 2017 to May 2018 were a legitimate means to target different consumers with different ailments, responsive to the same active ingredient, but used in different ways. The court needed to decide whether GSK contravened sections 18, 29(1)(g) and 33 of the Australian Consumer Law.

The court concluded that GSK did not contravene the Australian Consumer Law. Although it was legitimate for GSK to market a general product and a specialist product, each containing the same gel, such consumers must not be misled into reasonably believing that another product by the same supplier with the same, or substantially the same, active ingredients is not suitable, or is otherwise somehow inherently inferior for treating their condition. The court found that GSK went far enough by the additional words and other changes in the packaging, in the context of the different cap and the different usage duration, not to bear the asserted proscribed character. The onus of proving the disputed contraventions was not discharged.

The court ordered that the parties furnish agreed or competing procedural orders for the penalty hearing of the contraventions admitted by the respondents at least 48 hours prior to the next case management hearing. The proceeding was to be listed for case management on a specified date.