Legal Research
Cases
Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd

Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd

Link copied

Case Copied 7 November 1985 31 min read

Contents

On this page

. -

l	CATCHWORDS
!
~
I

TRADE PRACTICES

- Trade Practices Act sections

52,

advertising - misleading conduct

- misleading statements -

discharge of onus of proof that statement of scientific knowledge

is false - pictorial representations as "statements"

- mandatory

injunction to publish corrective advertising, power under

s.80.

Trade Practices Act, 1974

- sections 52, 53, 80, 80A.

Mundine v Lavton Tavlor Promotions Ptv. Ltd. (1981)

3 ATPR 42909.

Given v Prvor (1979) 39 FLR

437.

JANSSEN PHARMACEUTICA PTY. LTD. V PFIZER PTY. LTD.

No. G. 220 of 1985

Burchett J.

I	Sydney 7 November 1985

IN THE FEDERAL COURT OF AUSTRALIA

) )

I	SOUTH W E S DISTRICT REGISTRY	)	No. 220 of 1985
)

DIVISION

GENERAL

JANSSEN PHARMACEXJTICA

PTY. LTD.

Applicant

PFIZER PTY. LTD.

Respondent

REASONS FOR JUDGMENT

I	BURCHETT J.

This case concerns worms. The worms in question are

nematode worms, which form

a large phylum of invertebrate animals

including many parasites, a number of genera of which infest human beings. In underdeveloped tropical countries they present a major health problem.

I	The applicant and the respondent are both pharmaceutical

companies,

each

which

markets

through

pharmacies

non-prescription medication for the treatment of worms. The

medications are quite different, but it is not in dispute that

each

effective

against

common

threadworm

(Enterobius

vermicularis), the type of worm familiar to many parents of very

young children.

2 .

What

led

these

proceedings

was

advertising

campaign conducted by the respondent by means of a video film, a television advertisement, radio advertisements, and a brochure. The video film was distributed to pharmacies (in particular a number of pharmacies in Perth, Adelaide and Sydney, and one in

Cairns), being supplied together with additional copies intended

to be lent to customers for home viewing. The brochure was also

distributed

pharmacies

(in

particular

the

Adelaide

metropolitan area).

The applicant claims that by each of these

means, especially by the video, the respondent has in trade

commerce, engaged in misleading and deceptive conduct proscribed

by s . 5 2

of the Trade Practices Act

1974.

The applicant also

alleges breaches of s.,53(f) by the making of false and misleading

statements concerning the need for goods, being the respondent’s

medication which

is known as Combantrin.

The video commences with

a scene, played in the manner

of a television soap opera, between

a young housewife (Janet) and

her mother, in which Janet‘s stricken plea for help to solve her

family crisis over a tearful and bad-tempered son (Brian), who

sets her at odds with her husband, is met by a wise motherly

assurance that a worm cure from the chemist will make Brian and

the family perfectly right again! After this modern advertiser’s

application

Quintilian’s ancient advice that in order to

persuade the orator should first entertain, the video announces:

“There

are

three

major

types

human

infesting worms in Australia

threadworm,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1985] FCA 574
Decision Date: 7 Nov 1985

CaseChat Overview and Summary

This case involved a dispute between two pharmaceutical companies, Janssen Pharmaceutical Pty Ltd (the Applicant) and Pfizer Pty Ltd (the Respondent), over the Respondent's advertising campaign for its medication Combantrin, which was claimed to treat threadworms, roundworms, and hookworms. The Applicant alleged that the Respondent had engaged in misleading and deceptive conduct, in breach of sections 52 and 53 of the Trade Practices Act 1974, by falsely claiming that roundworms and hookworms were common and dangerous in Australia and that Combantrin was the ideal treatment for all three types of worms. The Applicant sought an injunction to restrain the Respondent from continuing the conduct and requiring it to publish corrective advertising.

The key legal issue was whether the Respondent's advertising campaign made misleading and deceptive claims about the prevalence and danger of roundworms and hookworms in Australia, and about the superiority of Combantrin over the Applicant's medication Vermox.

The Court found that the Respondent's claims were misleading and deceptive. The evidence showed that roundworms and hookworms were extremely rare in Australia, while whipworms were more prevalent than roundworms. The Court also found that the suggestion that Vermox could cause worms to migrate and do further damage was without scientific foundation.

The Court held that the Respondent's advertising campaign had engaged in misleading and deceptive conduct and had made false and misleading statements concerning the need for goods. The Court granted the Applicant's relief, including an order to recall and destroy the misleading promotional materials and to publish corrective advertisements in specified publications and a national daily newspaper. The Court also ordered the Respondent to pay the Applicant's costs.

The Court relied on the statutory authority under sections 80 and 80A of the Trade Practices Act, as amended, to order corrective advertising on the Applicant's application, rather than only on application by the Minister or the Australian Competition and Consumer Commission.

Orders