Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd

[1985] FCA 574

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l	CATCHWORDS
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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.

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I 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.

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Sydney

7 November 1985

IN THE FEDERAL COURT OF AUSTRALIA ) )

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

DIVISION GENERAL 1

JANSSEN PHARMACEXJTICA

PTY. LTD.

Applicant

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PFIZER PTY. LTD.

Respondent

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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 of which markets through pharmacies a

non-prescription medication for the treatment of worms. The

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

each is effective against common threadworm (Enterobius

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

young children.

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What led to these proceedings was an 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

i	Cairns), being supplied together with additional copies intended to be lent to customers for home viewing. The brochure was also
distributed to pharmacies (in particular in the Adelaide
metropolitan area). The applicant claims that by each of these
means, especially by the video, the respondent has in trade or
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
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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 of Quintilian’s ancient advice that in order to

persuade the orator should first entertain, the video announces:

“There are three major types of human

infesting worms in Australia - threadworm,

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roundworm hookworm. and O€ these, threadworms are by far the most common. One in ten people is infested with them at any

time. Threadworm eggs are very easily

transferred from person to person. They're'

tiny and light. They can be picked up on

buses, in playgrounds or toilets - bed linen,

towels, even furnishings, carpets and pets'

fur can harbour eggs. They're light enough

to float in the air, and can be inhaled. No

matter how clean your home, how careful your

rules of hygiene, you and your family can be

at risk. .

Once eggs are swallowed, they hatch and

mature in the stomach. After mating, the

male dies and passes out of the body. When

the female is ready, she migrates to the anal

area where she emerges to lay her sticky

eggs. This usually happens at night when

it's dark and quiet. It's these eggs that

cause the irritating itching that may be one

of the symptoms of infestation. Other

symptoms are loss of appetite, inability to

concentrate. Schoolwork may suffer, tempers

flare, particularly at meal times as a child

consistently refuses to eat temptingly

prepared Meanwhile. quite meals.

unknowingly, the child may be spreading eggs

to infest others. He scratches at the eggs

at night and transfers them to sheets,

towels, even door handles, where they're

picked up by others and the cycle continues.

Roundworms are less common than threadworms,

in Australia, but infestation is on the

increase. They occur in tropical areas, and

are common in Asia. Immigration and the ease

of frequency of travel are causing an

increasing incidence here at home. Roundworm

eggs are usually ingested from vegetables

that haven't been thoroughly washed, or have

been washed in unclean water. The eggs hatch

in the stomach. The larvae burrow through

the intestines, enter the bloodstream, and

make their way through the liver to the

heart. They then work their way into the

lungs and windpipe, where they are coughed

up, swallowed again, and mature in the

intestine up to 350mm long. At that size, a

mature roundworm can cause serious intestinal

blockage. Malnutrition is also possible as

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the worms claim more and more nutrients from

the host body. There may be serious damage

to internal tissues as the larvae migrate

through the body.

Hookworm is the least common in Australia, but outbreaks do occur, and transfer from

person to person is as easy as with the other

worms. Hookworm eggs hatch in the soil, and

the larvae enter the bloodstream by burrowing

through the skin, usually between the toes.

They take a simllar path through the body,

and then hook themselves onto the intestinal walls and feed off the host's blood. They're not large, only up to about 13mm long, but a heavy infestation can cause malnutrition, as the worms claim the nutrients the host should

be getting, and again there's the risk of

serious tissue damage.

So, worms are a problem. Threadworm is an

irritating, annoying, upsetting problem.

Roundworm and hookworm can be very dangerous.

Worms are a family problem, and a community

problem, because they're so easily transmitted. We all have a responsibility to try to minimize worm infestation in our

community.

So, how do we go about it? Pfizer Combantrin

is the ideal and simple solution. Your

Chemist will be happy to supply you Gith the

Combantrin in the dosage that's appropriate

to your family and in the form you prefer -

sachets of raspberry flavoured granules,

tablets, or a liquid suspension.

One dose €or every family member knocks out

all three types worm of threadworm,

roundworm and hookworm. Combantrin acts very

quickly to paralyse the worms completely.

Then they're passed safely out of the body.

There are other, worm treatments on the

market, of course. Most other products act

by starving the worms to death. They inhibit

glucose intake, and the worms lose the

nutrition they need. This is a long, slow

process, and in the case of roundworm and

hookworm requires more than one dose.

Meanwhile, round and hookworms may be able to escape the medication by migrating into body tissues and doing yet more damage.

Combantrin acts on all three types of worms

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lmmedlately wlth a single dose. So, before

you choose a worm treatment, be sure it's

fast, and effective against all three types

of worms, and be sure it's safe for all your

family. Many treatments can't be given to

very young children, and yet you must treat

the whole family for the treatment to be

effective. Combantrin can be safely given to

children from the age of six months. You can

treat the whole family safely, quickly,

effectively. But even a worm free family can

be infested again, of course. So it's

important that the whole family be treated

regularly. A dose at the beginning of each

school term will help to ensure that your

family doesn't suffer. What else can you do

to minimise the risk?"

There follow a passage advising certain hygienic

measures, a repetition of the admonition to have "a regular worm

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l	treatment	for	the	whole	family".	a	scene	showing	the	young
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mother, Janet, passing on to a friend the glad tidings of the

curing of worms, and a final plea: "Combantrin, for your

i family's sake, for your community's sake!"

It will be apparent that there are several intertwined

I	themes	in	the	video.	The major	theme	is	that	there	is	in
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Australia a menace to be avoided, which consists of three types of worms, all three of which Combantrin paralyses. While it is

said that threadworms "are by far the most common", that

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roundworms "are less common than threadworms in Australia", and

that hookworm "is the least common in Australia", any lessening

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of concern about roundworms and hookworms which these statements

might engender is tempered by many indications that roundworms

and hookworms have a significant prevalence. It is to be noted

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that, far comparisons, as to the degree to which they are "common", with threadworms, which are so extremely common that one-tenth of the from suggesting they are rare, the video makes

population is infested with them at any time. To say that

"roundworms are less common than threadworms" is to speak of

roundworms as comparably common, though less so. Furthermore,

the video goes on to assert of roundworms that "infestation is on

the increase", and to magnify then importance by asserting they

are a danger. Similarly, in the case of hookworm, the statement

that "hookworm is the least common in Australia" is immediately

qualified by the assertion: "But outbreaks do occur, and

transfer from person to person is as easy as with the other

worms." The other worms referred to must, of course, be

roundworm and threadworm, and the suggestion must be that,

although both roundworm and hookworm are less common than

threadworm. they share with threadworm the ready spread of

contagion which has already been graphically illustrated. In

their case, the consequences are to be feared. During the

statements about ingestion of roundworm eggs from vegetables,

there is shown on the screen a picture, not of an Asian peasant

or an aborigine from a settlement in the tropical outback, but of

what might be assumed to be an ordinary Australian washing

vegetables in a plastic bucket, and during the reference to

hookworm larvae burrowing through the skin, usually between the

toes, the video shows what could be a suburban backyard or park

with an apparently ordinary small suburban child playing in it

barefoot. Almost immediately afterwards there comes the

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assertion: "Roundworm and hookworm can be very dangerous. Worms

are a family problem, and a community problem, because they're so

easily transmitted. We all have a responsibility to try to

minimise worm infestation in our community." The screen at this

stage depicts, successively, an ordinary-looking family and a

crowd of people dressed and appearing	like	ordinary	suburban
Australians.

In notoriously urbanised Australia, a video distributed

in city areas, and bearing no indication whatever that it was

intended to be shown in specialised locations only, which

contains such a statement, and is illustrated by such visuals, will most naturally be understood as suggesting that roundworm

and hookworm are indeed a problem and a danger for the sort of

barefoot child apparently pictured. During the statement "worms are a problem", and the sort of town-dwelling Australian

the screen shows a representation of three separate worms and, in

the context, the assertion that "they're so easily transmitted"

must refer to the three types mentioned.

After thus arousing concern, one might think, and very likely even an emotional reaction if viewed by a young mother,

the video goes on to proclaim that the respondent's product,

Combantrin, "knocks out all three types of worms - threadworm,

roundworm and hookworm." The message seems clearly to be that

there are three types of worm, which present a family and a

community problem, and that Combantrin is the obvious solution.

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since whether a family is infested with any or all of these

types, Combantrin will equally surely solve the problem. Why

would anyone use another medication which might leave untouched

an unsuspected type of worm which happened to be present?

I But it is this strong selling point of the video which

the applicant claims is its fatal weakness under s s . 5 2 and 53 of

the Trade Practices Act. For the applicant says that the

I attractive argument is simply false. The applicant called a

number of highly qualified experts, the effect of whose evidence

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I is that neither roundworm nor hookworm has any significance at

all for the ordinary Australian family, and furthermore, that the

l	neat ]uxtaposition of Combantrin with the three types of worm in
I	Australia has simply been produced by a selection of those types
against which Combantrin is effective, while other worms at least as significant in Australia as roundworm and hookworm (if these
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could be regarded as significant) have simply been omitted, being
worms which Combantrin is ineffective to treat. To add piquancy
to this point, it needs to be realized that whipworm. which is
i	I	more prevalent in Australia than either roundworm or hookworm,
and is not cured by Combantrin, is cured by the applicant's drug Vermox.
The central issue of fact in the case is thus whether roundworm and hookworm are of any siqnficance to the ordinary
Australian family. In putting it this way I am accepting the
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applicant's submission that it would be quite unreal to consider
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the video as concerned with the problems of aboriginal

settlements. It is clearly directed to the general populace. As I have indicated, the visual images put that beyond question. So

does the distribution of multiple copies to pharmacies	in Perth,
Adelaide and Sydney.

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!	roundworms	The evidence	(Ascaris	that	shows
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, lumbricoides) and hookworms (Ancvlostoma duodenale and Necator

americanus) have not been found to be present, save in a minute proportion of cases, by pathology laboratories in Australia. It

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has been pointed out in argument, by counsel for the respondent,

1	I	that in the majority of cases the worms would be harmless, if
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I	present, and therefore no testing might be done. This argument
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sits oddly with the emotive concern displayed by the video, but
in any case, I think it misses the point. It can hardly be
thought that a higher proportion of the healthy population would
i	be infested than of the unhealthy population which has required
medical examination with pathology reporting. I am prepared to
applicant that the evidence of the samples tested does lead to the conclusion that roundworms and hookworms are not a problem in
accept the opinion of the experts who have been called by the outback, such as some aboriginal settlements.

I	The respondent called	no evidence, contenting itself
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I	with cross-examining the applicant’s experts. Where inferences
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are open from the evidence, I am assisted in drawing them with
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greater confidence by the consideration that a pharmaceutical

company which supplies a widely-used medication might be expected

to have available to it appropriate expertise to answer the

applicant's case.

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I	Much was	made	cross-examination	in	the	possibility	of
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I that migrants from South East Asia, and returning travellers,

J	might introduce roundworms and hookworms into the populated areas
of Australia. So far as migrants who might be thought at
particular risk are concerned, the evidence indicates that the and routinely treat South East Asian refugees to eliminate any
roundworms or hookworms from which they may be suffering. So far
as returning travellers are concerned, there is expert evidence that light infestations have occasionally been detected and
treated. It needs to be borne in mind that, quite to the
contrary of the suggestion in the video that transfer from person to person would be easy, the scientific evidence which I accept shows that neither roundworm nor hookworm could be transferred from a returned traveller to other members of his family, in any
part of urban Australia, save under the most exceptional
circumstances. For these worms are propagated only after a period during which the eggs are matured (roundworm) or hatched
I	(hookworm) in the soil. This requires defaecation upon the soil,
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i	or the spreading night of soil, appropriate soil type,
temperature and humidity conditions, and subsequent contact by the persons who become infested, either by eating contaminated
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vegetables, in the case of roundworm, or by walking barefooted

upon the soil in the case of hookworm. Both types of worm are

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endemic in tropical areas, and hookworm eggs will not hatch in

Australian soil south of about Coffs Harbour, even if present,

while roundworm eggs, though it is possible for them to mature in

southern areas, will do so more slowly (being thus more sub~ect

to natural destruction), even if present in an appropriate soil

medium. If the returning traveller had picked up hookworm in

South East Asia, and came home to a Sydney or Melbourne suburb,

his hookworm would probably cause no symptoms, since it requires

a long period of build-up of infection to become severely

infested. His hookworms (if untreated) would die within their

natural life span of three to five years without leaving any

progeny to continue the infestation or communicate it to anyone

else, since hookworms do not breed, as I have said, south of

Coffs Harbour and moreover Sydney is sewered and human faecal

matter is not common upon the soil. The life of a roundworm is

much shorter, a matter of several months, and it is unlikely in

the extreme that such a traveller, who had acquired roundworms,

would become reinfected	or be able to transfer them to any other
member of his family.	Dr. Prociv, a highly qualified expert,

could see no risk of transmission of hookworm or roundworm within

an Australian family. It would also be unlikely that the

returned traveller would have acquired roundworms or hookworms in

the first place, unless he had chosen to live in primitive

circumstances in a tropical country, eating a peasant diet, or

going barefoot in contaminated areas, whilst overseas.

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The Head of the Medical Parasitology Sub-section in the

School of Public Health and Tropical Medicine of the University

of Sydney, J.C. Walker, gave evidence of numerous studies

undertaken by the Sub-section, and concluded concerning roundworm

and hookworm: "We find these infections very rarely amongst

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people that have travelled overseas." He also said there is no

evidence of any increase, and the techniques used would detect it

if it occurred. I accept this evidence.

Not only is it false and misleading to suggest that

roundworm and hookworm (which the respondent's Combantrin	can
cure) are two of three, including threadworm, common types of

worm in Australia, and a danger or a health problem not limited

to a few special risk groups, but the fact is that two other

types of worms (concerning which no claims are made by the

respondent for Combantrin) would have to be included in any fair

and truthful statement about prevalence of worms presenting	a
health risk in Australia, if that statement included worms as

rare as roundworm or hookworm. These other worms are whipworm

(Trichuris trichiura), which I find on the evidence is

considerably more prevalent in Australia than hookworm or

roundworm, and Stronqvloides stercoralis (which I shall refer to

by its genus name since it has no common name in Australia,

America Stronqvloides is probably the most dangerous of the nematode worms in Australia, and some former prisoners-of-war who spent it is sometimes called threadworm).

though in

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time in South East Asian camps still suffer from it. It is also

to be found in mental asylums because of its capacity to infect

from faeces by mouth. Its victims can also become re-infected,

unlike the parasites, by larvae hosts of most other soil transmitted nematode

which have hatched and sufficiently matured

within the host to be viable without the usual period in the soil. The Australia-wide survey carried out by the Australian

Hookworm Campaign in 1919-1924 (which, assisted by modern

sanitation, presumably was responsible for the extremely low

incidence of hookworm in Australia today) showed .2% of persons

examined had Stronsvloides infections, exactly the same

percentage as for roundworm. If one bears in mind that Dr.

Prociv, a highly qualified physician and parasitologist, gave

evidence that Stronsvloides even is today seriously

underdiagnosed because of difficulties of detection of the larvae

as compared with the eggs of hookworm and roundworm, and that in

general survey evidence could be multiplied by ten to obtain an

estimate of actual prevalence, I think it is probable that

Stronsvloides was considerably more prevalent than roundworm in

1924. Upon the whole of the evidence, I think it probably is

today about as prevalent, if not more so.

It is simply not possible to regard the message about three common, though not equally common, types of worms in

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Australia, which can all be treated by one dose of Combantrin. as other than grossly misleading.

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I should add that no argument was based on any

proposition to the effect that it is misleading to speak of

"worms" as if there were no other worms in Australia than

I nematode worms. For the purposes of this case, tapeworms (cestode

!	worms) were ignored.
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At the stage in the video when a comment is made about

"other worm treatments on the market", the applicant's

l preparation, Vermox, is clearly displayed on the screen, so that

there can be no doubt which product is being attacked. The

suggestion made is clearly that Vermox is a less desirable

product for use by Australians than Combantrin, since it involves

a risk that treated roundworms and hookworms may "escape the

medication by migrating into body tissues and doing yet more

damage." This horrifying warning is made more effective by a

representation of a worm breaking through a previously unbroken

line suggestive of a worm breaking through an intestinal wall.

! Of course it follows from what I have already said that the idea

of such a risk, which must have the potential to do considerable

damage to the market prospects of Vermox, is very misleading.

For it builds upon the false suggestion that the ordinary

Australian, being treated with Vermox for his threadworm, is at

significant risk of having also roundworm and hookworm. Quite

apart from this fundamental ground of objection, the implied

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assertion that Combantrin is safer with both hookworm and

roundworm because the use of Vermox may cause these worms to

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migrate within the body is, on the evidence, without foundation.

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It was submitted by counsel for the respondent that the

I	applicant had failed to prove positively that Vermox would not
ever produce a migratory reaction in worms, and that a statement
could not be said to be false or misleading within s.52 without
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I	such proof, there being no onus on the respondent to prove the
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!	truth of the statement. Of course it is correct that the onus is
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on the applicant, but it seems to me that proof that there is no
scientific foundation for a statement in the realm of a science
may be sufficient proof that the statement 1s misleading.

This will be so where in its context the statement must

be, or is likely to be, taken as implying that there is an adequate foundation in scientific knowledge to enable it to be

made. (Cf. Colqate Palmolive Ptv. Ltd. v Rexona Pty. Ltd. (1981)

37 ALR 391). I think the present is such a case. It is not

without significance that the statement is made in a video

distributed through pharmacies by a pharmaceutical company

professing expertise in the area. The video represents its

information as available to one who does research in appropriate

libraries, and professes to be "presented as a service to the

community by Pfizer" (these words are on the cover of the video,

which also contains the sub-title "WORMS - KNOWLEDGE AND

TREATMENT" 1 .

As regards hookworms, no subtle exegesis of the

implications of the video is required. In the plainest sense,

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the suggestion that hookworms may migrate into a person's tissues

to escape Vermox is established to be false, since the evidence

is clear that hookworms do not migrate. So far as roundworms are

concerned, the evidence shows that migration through body

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cavities, such as the bile duct and oesophagus, is a known

phenomenon. I am satisfied on the balance of probabilities,

I	having regard to the opinions of the expert witnesses, that this
phenomenon has generally been observed in cases of heavy
infestation (such as occurs, for example, in Kenya - not a single
instance in Australia was evidenced), and also that a roundworm
is not capable of breaking through a normal intact intestinal
wall. Expert witnesses accepted that migration of roundworms might be provoked by certain foods and drugs, but they did not accept the proposition that mebendazole (the chemical ingredient
in Vermox) had such a tendency, and Dr. Prociv gave evidence, the
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effect of which was that he had never heard it seriously
suggested by any parasitologist that mebendazole might engender
migration, though he had heard of a general view that
anthelmintic treatment (that is anti-worm treatment) could have this effect, but did not know of any actual case having been described in the literature.
I accept this evidence. Having regard to the failure of the respondent, not only to tender any evidence in answer to Dr.
Prociv's evidence, but also even demonstrate to in
cross-examination of him from the scientific literature the
existence of a single recorded instance, I conclude that there is

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no scientific foundation for the suggestion that mebendazole, as

distinct from pyrantel (the chemical in Combantrin), may engender

migration of roundworm. Indeed the evidence, so far as it bears

j	on such	a comparison, is to the opposite effect.	Dr.	Prociv
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pointed out that the action of pyrantel causes the worm to go

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I into a spasm, and he said it can become agitated, so that,

!	theoretically,	pyrantel could cause worms to migrate, though he
i	had not heard	of an example of pyrantel actually causing this
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I	consequence.
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I There are other statements in the video which the

I	evidence shows	to be incorrect. It is stated, for example, that
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i	"there may be	serious damage to internal tissues as the larvae

i	(i.e. of roundworm) migrate through the body."	Dr.	Bagshawe,
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I	speaking from experience as a	specialist physician in Nairobi,
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Kenya, where well over half the population suffered some

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infection with infections very rarely cause symptoms, and she had never seen gastro-intestinal worms, said that light

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heard of a heavy infestation of roundworm or hookworm in the

average Australian community. She had never experienced, in

nineteen years of medical practice in Kenya, any case where she

was satisfied that the passage of roundworm larvae had caused

symptoms, and she pointed out that the larvae are microscopic.

She agreed that they can cause symptoms. which she thought would

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most likely be due to an allergic reaction to their presence and

not as a result of the passage of the larvae.

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In any case, for ordinary Austr ,ali ans the suggestion

that Combantrin would offer any protection against damage from

l	roundworm larvae seems to me to be clearly wrong. The ordinary
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!	Australian will not become infected with the larvae in Australia,
and if he travels abroad and becomes infected there, the
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I	Combantrin will probably only be effective against the adult
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roundworm upon its development. The evidence suggests that
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!	Combantrin is not effective against larvae in the bloodstream, and indeed its anthelmintic action relies upon the fact that it
is not absorbed outside the gastro-intestinal tract, save to a
I	very limited extent.

The video admonishes people to have "a regular worm

treatment for the whole family". It does not say "a regular

threadworm treatment", despite the rarity of the two other worms

Of sufficiently to have regular treatment against the possibility of course, few people would fear threadworm

it mentions.

getting it, since it is normally symptomless and never serious.

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In any case, all the experts, who gave evidence upon this aspect,

agreed that it is not only unnecessary, but also unwise, to have

such treatment, unless there is evidence that a family member is

in fact infected, or the particular medical history makre

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!	continued infection or reinfection likely.
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l	Turning to the radio and television advertisements, of which complaint is also made, these are built upon the themes

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that "one in ten of us have got worms", or as a variant, "there's

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about a one in ten chance that you‘ve got worms”; and (b) that

“there are three common types of worms, worms, worms, and

Combantrin gets rid of the lot in a single dose“. It will be

apparent that the true prevalence of the relatively harmless

threadworm is associated in the advertisements with two other

unnamed worms, which are unqualifiedly said to be common, and the

product is, as in the video, promoted as having the virtue of

! effectiveness against all three common worms. I have already

found that promotion on that basis is misleading, since only

threadworm is relevantly common. It would, of course, be even

more so for radio listeners or television viewers who had also

seen the video, and were now very plainly told what it had more

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subtly suggested, that the roundworm and hookworm it described as

dangerous were also so common that one could speak of three

common types of worms. When multi-media advertising is employed,

the cumulative effect is not to be ignored.

In any case, I have found on the evidence that whipworm

is more common in Australia than either roundworm or hookworm,

and Combantrin does not cure whipworm. It follows that the claim

in the advertisements is false.

The brochure has on its cover “Pfizer Pharmacy Reference Manual”. Inside, it contains the following:

COMBANTRIN

ONE DOSE TREATMENT FOR 3 TYPES OF NORMS

...

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Effective Against: Threadworm, roundworm,

hookworm.

Act ion : Paralyses worm rapidly -

no migration problems.

(Migration problems can be

experienced when other

worming treatments are

used. This means that the worms may invade internal

tissue and cause serious

damage to	the	body'	S
organs. 1

...

How do you catch worms?

*	It is estimated that	1 person in 10 has
worms.

*

Worms can be caught by anyone - they are

very easily transmitted through contact

either directly with infected people, or

through touching a surface such as a door

handle, pencil, linen, furnishings, pets etc. that has been touched by an infected person, In fact threadworm can be picked

up by simply breathing in eggs which may

be floating in the air."

There follow: an assertion that "worms are very easily transmitted" (in the context, which also contains a specific

reference to threadworm, this is clearly a general statement),

l that the family should be treated on return of any member from a

trip overseas because "the risk of hook and roundworm infection is increased" (implying such a risk exists, to be increased), and

a section headed "WHY FECOMMEND COMBANTRIN" which refers to

Comhantrin as "effective against threadworm, roundworm and

hookworm in a single dose", and contrasts it with Vermox:

!

"threadworms in a single dose".

I

!

l 1 t 21.

i b

Although the brochure does not; assert in terms that

roundworm and hookworm are "common" in Australia. it does (by its

I

emphasis on the importance of Combantrin's effectiveness against

i	three types of worms, its reference to migration problems which
I
I
i	I
can only refer to roundworm, and references to the risk of
I	infection in terms which, in the context, include roundworm and
I
t
I	hookworm) strongly suggest that they are relevant, and at least
!
somewhat prevalent, in the areas of the pharmacies to which the
brochure is sent. The reference to Vermox. which is actually
effective against the very three types of worm referred to, as
l	~ 1 1 a5 whipWo€-nl, is eluiilsily mislrading. Counsel for the
l	Respondent sought to excuse it as merely ambiguous, but ambiguity
I	is not infrequently an especially effective tool of deception. In
I
this case, of course, the emphasis on the word "only" in the
condemnation of Vermox, "Threadworms in single a dose",
I
I	serves not merely to denigrate a competitor, but also subtly to
reinforce the message that the other worms, which Combantrin treats, are important.

The brochure goes on to make a further disparaging

comparison between a feature asserted of Combantrin ("Rapid

action paralyses worms - no migration problems"), and a feature

asserted of Vermox ("Slow death by glucose inhibition. Possible

migration problems"). Evidence which shows this comparison to be

I	misleading has already been discussed in relation to the video. To that discussion, it may be added that "glucose inhibition" is,
I
on the evidence, an oversimplification of the bio-chemical

' 9

1. \I 22.

effects of mebendazole. If,	In a video for general viewing, this
is excusable, it is less	so in a booklet bearing the title

l

"Pharmacy Reference Manual 'I . In that context, the

i oversimplification seems to be intended to assist the spurious

!	"migration"	argument.
;
1

I conclude that by the video, the radio advertisements referring to "three common types of worms", the television

advertisement, and the brochure, and each of them, the Respondent

has, in trade or commerce, engaged in misleading and deceptive

conduct within the meaning of s.52 of the Trade Practices Act. It

has also, within the meaning of s.53, in trade or commerce, in

connexion with the supply and possible supply of goods, and in

I

connexion with the promotion by each of the means mentioned of

I

the supply and use of goods, made false and misleading statements

concerning the need for goods, the goods being its medication

Combantrin.

Insofar as the video involves pictorial representations,

i	I refer to what Franki	J	said in Given	v Prvor (1979) 39 F.L.R.
437 at 440:

"Looking at the question in a broad way it is

difficult to see why pictorial material

should not form part of a statement. It seems

to me a statement may be in any language,

including one made by signs that are known

and understood by those deaf and dumb people

who use them, and one written in shorthand.

In the same way I cannot see why pictorial or

diagrammatical material should not be

included in the statement."

23.

4

In the present case, the depictions upon the screen, to which I have referred, simply provided a setting in the context

words application. Nevertheless, the words remained, though understood received sharper focus and clearer

of which the

in that setting , the true medium of the statement.

The Applicant does not ask for damages. It seeks

injunctive relief, both restraining the Respondent from

continuance of the conduct in question, and also requiring it to

take some steps to correct the misinformation it has

disseminated.

There is plainly a strong case for appropriate relief.

The Respondent’s product has been promoted through advertising

which made a meretricious appeal to medical science to justify

exciting the misleading statements. While parental feelings thus aroused were fears and emotions of parents by seriously

exploited for gain, a competitor’s product was in the process

misleadingly denigrated.In my view, relief should be granted,

which should include, if the Court’s power extends so far, a

mandatory order to correct the misinformation purveyed.

But restraining the continuance of the conduct and the making of the does the Court have power, in addition to

statements, to make a mandatory order requiring publication of

corrective advertisements? In Mundine v Lavton Tavlor Promotions

Ptv. Ltd. (1981) 3 ATPR 42909, Ellicott J expressed doubt whether

t 24.

CV.-

>.

the Act, as it then stood, empowered the granting of relief of

this kind in an application not made by the Minister or the

Commission. The problem was that 5.80 then authorised the making

of orders of carefully defined types, which did not include corrective advertising, while s.80A specifically empowered the Court to order corrective advertising “on the application of the

Minister or the Commission“, and subject to a cost ceiling of

$50,000. Where the power was expressly conferred, but confined in

these ways, it would have been difficult to read the then limited

powers in 5.80, or even the general powers in 5.87, as

authorising similar orders on the application of other persons

and without any cost ceiling.

But by the Statute Law (Miscellaneous Provisions) Act

(No. 1) 1983, s.80(1) was amended to confer upon the Court, in

cases such as the present , a wide power to “grant an injunction

in such terms as the Court determines to be appropriate“, and at

the same time s.EOA(1) was amended by the insertion as its

commencement of the words “Without limiting the generality of

5-80 . . . l ’ . In the liqht of these amendments, I conclude that the power, the existence of which having regard to the sections as

they formerly stood Ellicott J doubted but did not finally deny,

does now inhere in the Court under the Act in its present form.

Upon appropriate short minutes being brought in, I shall

make orders .to	the effect of the orders sought in paragraphs
4,5,6,7,8,and 9	of the Amended Application, but further amended

1

25.

to conform to this ~udgment,	and I shall make an order for	costs
in favour of the Applicant.

I	I certify	that	this	and	the
!

I

preceding twenty-four ( 2 4 ) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Mr. Justice Burchett.

AssoFiate

Dated: 7 November, 1985.

I

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I	* , -
l

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY 1 No. G.220 of 1985

I )

I	GENERAL DIVISION	1
I
BEZrWEEN :

JANSSEN PHARMACEUTICA

PTY. LTD.

Applicant

AND :

PFIZER PTY. LTD.

Respondent

MINUTE OF ORDER OF THE COURT

4   4

I

Judqe Makinq Order: Burchett J.

Date Order Made:	19 November 1985 '
Where Made:	Sydney

THE COURT ORDERS THAT:

i

(1) The Respondent by itself its servants and agents be

i restrained from publishing or disseminating the video

recording entitled "Worms - Knowledge & Treatment" ("the

video") and the manual entitled "Pfizer Pharmacy

Reference Manual" ( "the manual") and from causing or

permitting to be broadcast the television advertisement

made on behalf of the Respondent in relation to its

product "Combantrin" ( "the television advertisement")

and such of the radio advertisements broadcast on behalf

of the Respondent as suggest expressly or by implication

that there three are common human-infesting

gastro-intestinal nematode worms in Australia ("the

radio advertisements").

( 2 )

The Respondent forthwith cause such steps to be taken as

may be necessary to recall and procure to be redelivered

2.

I

to the Respondent all copies of the video and so far as

may be in its power the manual which have been published

and disseminated by the Respondent within Australia and

to prevent the future broadcast of the television

advertisement and the radio advertisements.

( 3 ) The Respondent forthwith cause to be destroyed all

copies of the video and the manual in its possession

save for two (2) copies of the video and five (51 copies

of the manual which it may keep for its own record

purposes only, and forthwith upon recall of any video or

I	manual	previously	disseminated	cause	such	video	or
I

i	manual to be destroyed, destruction in respect of the
video for the purposes of this order to include the
wiping by magnetic means of the material recorded on the
cassette tape forming part of the video.

(4) The restrained from without the prior leave Respondent by itself its servants and agents be

of the Court

publishing or making by any medium any of thc

representations or any representations which are

substantially the same as the representations set out in

the Schedule to the Amended Application. Where a

representation in the Schedule is expressed in the

alternative this order refers to each of the alternative

versions of the representation.

I

( 5 ) The Respondent forthwith inform the applicant by

affidavit of all persons to whom the Respondent is aware

after all reasonable enquiry that it has delivered or

caused to be delivered	a copy of the video	or the manual
or either of them.

l (6) The Respondent forthwith published be cause to

prominently in "Pharmacy Trade" and "Australian Journal

of Pharmacy" an announcement in the following terms:-

"IMPORTANT ANNOUNCEMENT BY PFIZER PTY.

LIMITED

The Federal Court of Australia has

ruled that Pfizer Pty. Limited in its

recent advertising and promotion of

Combantrin has engaged in conduct that

is misleading or deceptive in that it

has made statements or representations

including the following:

(i) That there are only three types of human-infesting gastro-intestinal

nematode worms in Australia - i.e.

threadworm, roundworm and hookworm I

- whereas in fact, there are at

least five such types of worms -

i.e. threadworm, roundworm,

and	whipworm	hookworm,
Strongyloides stercoralis.

(ii) That threadworm, roundworm and

hookworm are common in Australia

whereas onlv threadworm is common

and roundworm and hookworm are

extremely rare.

Pfizer Pty. Limited will forthwith be ceasing and withdrawing any and all

such advertising and promotional

material. including a manual entitled "Pfizer Pharmacy Reference Manual", a television advertisement, a number of

radio advertisements and a recently

released pharmacy/consumer video.

Pf izer Pty . Limited requests

pharmacists cease to further

distribution and us e of such

promotional material pending its

collection by a Pfizer Pty. Limited

representative. "

as well as cause to be published prominently in a

national daily newspaper an announcement in the

following form:-

"IMPORTANT ANNOUNCEMENT BY PFIZER PTY.

LIMITED

The Federal Court has ruled that Pfizer and promotion of Combantrin has engaged

in conduct that is misleading or

deceptive that in has it made

statements or representations including

the following:

(i) That there are only three types of

human-infesting qastro-intestinal

nematode worms in Australia - i.e.

threadworm, roundworm and

hookworm. - whereas in fact, there

are at least five such types of

worms - i.e. threadworm,

roundworm, hookworm, whipworm and

Strongyloides stercoralis.

4.

(li) That threadworm, roundworm and

hookworm are common in Australia

whereas only threadworm is common

and roundworm and hookworm are

extremely rare. 'I

The Respondent	pay	the	Applicant's	costs	of	these
proceedings.

Liberty to apply on 21	days notice in the event of	a
change of circumstances.

The orders made in paragraphs 5 and 6 hereof be stayed

for 14 days from 19th November 1985.

The operation of the order made in paragraph 4 hereof be

suspended until 19th December, 1985, insofar as any

representations set out on the sachet dispensers

exhibited to the affidavit of Kenneth James Moran sworn

on 16 November, 1985, and filed in these proceedings,

and marked with the letters "KJM-1" and "KJM-2"

respectively are concerned.

Settlement and entry of orders is dealt with in Order	36
of the Federal Court Rules.