Voltaren and Emulgel makers fined $4.5m for misleading consumers over pain relief gels
The federal court has ordered a pharmaceutical company that produces the pain relief gels Voltaren Osteo Gel and Emulgel to pay $4.5m in penalties for marketing and pricing the products differently when in fact they were identical.
Emulgel is marketed for the temporary relief of local pain and inflammation. Osteo Gel was, between 2012 and 2017, marketed for the relief of osteoarthritis symptoms.
Both gels contain identical doses of the active ingredient diclofenac diethylammonium, but Osteo Gel had a higher recommended retail price, selling for up to 16% more. There were differences in the range of available tube sizes, but Osteo Gel still had a higher recommended retail price per gram in the same sized tubes to Emulgel.
The cap on Osteo Gel was different, designed to be easier to open for people with osteoarthritis.
Pharmaceutical company Novartis made different claims about which conditions each gel could treat on both the packaging of the products and on its websites. Consumer watchdog the ACCC told the court the different packaging and advertising conveyed to consumers there were “material differences between the gels”, even though they were identical, contrary consumer law.
GlaxoSmithKline (GSK) acquired Novartis’s portfolio of Voltaren products and has been responsible for marketing and selling Voltaren products since June 2016. In a joint submission to the court Novartis and GSK admitted that it was misleading to claim and false that Osteo Gel was “specifically formulated to treat, solely or specifically treated, and was more effective than Emulgel in treating, local pain and inflammation associated with mild forms of osteoarthritis, when the products were in fact identically formulated and equally effective in treating this condition”.
The federal court justice Robert Bromwich on Thursday ordered GSK and Novartis pay the penalty, finding “over more than half a decade, this group of companies sought to maximise their sales and thereby profits by artificially boosting the breadth of its product range in three different ways in packaging and online, thereby representing to consumers that there were two different products for two different conditions, when the truth was that there was differential use of the same product”.
“The financial loss to consumers is difficult to quantify with a great degree of accuracy,” the judgment said.
GSK and Novartis initially expressed disappointment when the ACCC brought the action against them, but its affidavit to the court acknowledges and apologises that its past conduct had fallen short of the standards expected of it under the law.
“That is a candid and appropriate admission and amounts to the right
kind of sorry – sorry for engaging in the conduct, not just sorry for being caught out,” Bromwich said.