Is Nurofen better than
Panadol for a headache? The Federal Court decides
When one medicine is advertised as being more effective
than another, the Court examines the scientific studies to
decide if they support the advertised claims sufficiently to
comply with the consumer law provisions concerning false and
The Federal Court of Australia was in this position in in
GlaxcoSmithKline Australia Pty Ltd v Reckitt Benckiser
(Australia) Pty Limited (No 2)  FCA 1 (Foster J)
(8 January 2018).
The medicines are:
- Nurofen, which is pain relief medication marketed
and sold by Reckitt. The active ingredient is ibuprofen.
The standard dose is 400 mg.
- Panadol, which is pain relief medication marketed
and sold by Glaxco (GSK). The active ingredient is
paracetamol, also known as acetaminophen. The standard
dose is 1000 mg.
The Federal Court needed to decide whether or not it was
false, misleading or deceptive for Reckitt to claim
if consumers take Nurofen as directed, they will
obtain relief from the pain which they may be suffering
from a common headache, faster and more effectively that
they would experience if they took Panadol or
paracetamol instead (p 136, judgment)
In this article we examine the advertising, the pain
relief market, the law of comparative advertising, the
scientific knowledge and the outcome.
Commencing in August 2015, Reckitt undertook an
advertising campaign to promote Nurofen as better than
Paracetamol. It ceased in December 2015, pending the outcome
of the proceedings.
The campaign comprised mass-market advertising through
many channels: a television commercial, print advertising in
magazines purchased by a broad cross-section of the public,
print advertising in supermarket catalogues, point-of-sale
advertising in retail outlets and outdoor advertising on
billboards and at bus stops and train stations, and trade
advertising directed to pharmacists.
This is an example of a print advertisement:
- In some advertising, the heading was: NUROFEN IS
BETTER THAN PARACETAMOL; in other advertising it was:
NUROFEN IS SUPERIOR TO PARACETAMOL.
- In some advertising, FOR COMMON HEADACHES appeared
below the heading; in other advertising, FOR
TENSION-TYPE HEADACHES appeared below the heading.
- In some advertising, plain white packaging labelled
Paracetamol was depicted as the comparison medicine; in
other advertising, a packet of Panadol in its
distinctive green and white packaging was depicted.
- The fine print footnoted after FASTER PAIN RELIEF
and MORE EFFECTIVE contains warnings and references to
the scientific studies relied upon:
Always read the label, use only as directed.
Incorrect use could be harmful. If symptoms persist,
consult your healthcare professional. 1. Schachtel et
el, 1996, Steiner et al, 2007, Faster refers to complete
relief 2. 80% of the people will experience tension-type
headaches 3. Moore et al, 2014, Norholt et al, 2011,
Schleier et al, 2007.
- The graph was reproduced from the Schachtel Study.
- The overall impression, particularly the graph with
its bright red line for Nurofen and 4 hour time frame,
was that Nurofen delivers faster and more effective
relief from pain caused by common headaches than does
Panadol or paracetamol.
The pain relief market in
The Head of Category & Shopper Marketing ANZ at Glaxo
gave this evidence which demonstrated why the stakes are so
high in this market:
- Panadol has a long heritage – it has been supplied
by Glaxco in Australia since 1959. Each year, the
manufacturing plant at Glaxco produces more than 50
million packs of Panadol.
- In the 12 months ending 23 August 2015, the total
value of the over-the-counter (OTC) pain relief market
in Australia was $580.54 million.
- In late 2015, Panadol and Nurofen together held
approximately 71% of the OTC adult everyday pain relief
market, with smaller brands, pharmacy owned brands and
generic brands making up the rest
- At that time, that total market share was not split
between Panadol and Nurofen 50/50 but was split in a
ratio of approximately 46% to 54%.
- Both Nurofen and Panadol products are sold in
different formats (as tablets, capsules and caplets), in
different sub-brands and formulations, and in different
- The standard products are distributed through
supermarkets, petrol stations and convenience stores.
The stronger pain management products are distributed
- The OTC pain relief category is the largest consumer
health care category serviced by Glaxco.
These facts provide the commercial reason for bringing
The law of comparative
Comparative advertising must be based on fact, not
opinion. The Court quoted these statements with approval:
- While there are no special principles that apply to
comparative advertising, factual assertions made by an
advertiser must be true and accurate [p 47, at 26]
- A comparative, as distinct from a unilateral,
promotion of a product necessarily indicates that the
advertisement is not mere advertising puff, but involves
representations of fact which are either true or false
[p 47, at 27]
- It is misleading conduct to make comparative
efficiency claims that imply they were made on a
scientific basis when, in fact, there is no proper
scientific basis for making those claims [p 47, at 29]
Was there an adequate
foundation in scientific knowledge to support the claims
If so, there are reasonable grounds to make the claims.
If not, the claims are false.
Reckitt relied primarily upon the Schachtel Study, which
was a single clinical study. It was conducted in 1996 and
established statistically significant superiority in terms
of speed and efficacy of treatment for ibuprofen over
paracetamol. The graph was sourced from the study.
The results were not replicated in two further studies
designed to compare the speed and efficacy of treatment as
between ibuprofen and paracetamol with respect to pain free
relief at two hours after dosage.
Both parties relied upon expert evidence to advance their
cases. The experts relied upon the Cochrane Collaboration,
which is a source of high-quality information about the
effectiveness of health care.
Both experts agreed that the Cochrane meta-analyses based
on the application of scientific and arithmetical computer
programs are a gold standard for evaluating and comparing
medication efficacy (and safety) and are more informative
than single clinical trials as they synthesise the results
from all relevant studies.
The Cochrane meta-analyses (2015 & 2016) concluded that
‘no claim of superiority could justifiably be made by
ibuprofen over paracetamol in the present state of
The Court concluded that Reckitt had advertised without
sufficient scientific knowledge and had therefore breached
the Australian Consumer Law (sections 29(1)(a) and
In my view, it is misleading or deceptive or likely
to mislead or deceive consumers in Australia for Reckitt
to claim that ibuprofen (Nurofen) provides faster and
more effective relief from pain caused by common
headaches including TTH (tension-type headaches) than
does paracetamol (Panadol) when the only study which
supports such a clear cut claim is the Schachtel Study
and where the balance of the scientific knowledge is as
I have explained it above. (p 207)
Therefore Glaxco succeeded in stopping the Reckitt
Glaxco will not ask for corrective advertising. It will
ask for damages or compensation at a hearing to be held at a
It is interesting to observe that the consumer regulator,
the ACCC, did not intervene in this dispute. The ACCC left
it to Glaxco to protect the consumer from the false and
misleading advertising, no doubt relying upon an alignment
of the public interest and Glaxco’s private interest.