In 2010, the promotion of the Nurofen range of products “targeting” migraine, back pain, tension headache and period pain was awarded a CHOICE shonky award.

This was because all these products contained the same active ingredient (ibuprofen) and there’s no evidence that ibuprofen specifically “targets” the sites of pain.

CHOICE noted that filling up your medicine cabinet with different painkillers for every type of pain was unnecessary, not to mention wasteful, especially if they expired before you used them all.

CHOICE concluded, “the shonkiest aspect of this type of marketing is that the fast-acting painkillers labelled for specific pain types are more expensive – costing almost twice as much in some stores we surveyed – than their ‘all-pain’ fast-acting equivalent, Zavance caplets, which contains a comparable fast-acting form of ibuprofen.”

In August 2011, in response to a complaint submitted by Professor Paul Rolan about the promotion of Nurofen for headaches on television, the Complaint Resolution Panel (CRP) requested Reckitt Benckiser (Australia) Pty Ltd “withdraw any representations, in the context of headaches, that the advertised product goes straight to the source of pain or targets pain.”

In September 2011, Reckitt Benckiser said it did not agree with the CRP, “Nurofen advises that consumers will continue to see the familiar branding of the Nurofen target and messages of Nurofen working at the site of the pain. This branding includes TGA approved claims on packs that Nurofen provides targeted relief from pain.” Subsequently, the CRP referred this non-compliance to the delegate of the Secretary (the Therapeutic Goods Administration).

In August 2012, the TGA published the outcome of their review. The delegate of the secretary ordered Reckitt Benckiser (Australia) Pty Ltd to, “withdraw the ‘Live Well Headache’ television advertisement about the therapeutic good ‘Nurofen’ which was the subject of the complaint” and “to withdraw any representations, in the context of headaches, that the advertised therapeutic good ‘Nurofen’ goes ‘straight’ to the source of the pain”.

In response, regional director of Reckitt Benckiser, Lindsay Forrest, said he was, “delighted with the TGA Delegate’s ruling as it validates our decision to challenge the CRP findings, specifically in relation to our ability to communicate our long standing messages of targeted pain relief in relation to pain, including headaches”. The media statement continued, “Reckitt Benckiser’s current media plan will not be impacted by the TGA Delegate’s decision as it currently complies with all the TGA Delegate’s findings”.

It is my view that TGA delegate’s ruling has unnecessarily and incorrectly limited the Regulation 9 order to the specific words, “goes straight to the source of the pain” thereby failing to taking into account the CRP’s equal concern about the words, “targeted relief from pain”. In addition, by focusing only on the television ads for headaches and not taking into account the wider ongoing Nurofen campaign that uses look-alike branding the TGA delegate has failed to protect consumers.

In my opinion, the ongoing promotion of Nurofen products using claims such as “targeted relief”, “targets the source of pain”, “targeting the site of pain”, target imagery, both on the pack and in numerous advertisements, and television ads showing an animated target travelling through the body to end in the head, all breach the specific wording of the CRP determination and also the meaning that the average consumer would attribute to the delegate’s determination.

I note that a current “TGA medicine labelling and packaging review” has proposed, “Products cannot be marketed as'BRAND headache', ‘BRAND backache’, ‘BRAND joint pain’ if they include the same active ingredients in the same quantity.”

Accordingly, I have now submitted a complaint to the CRP, TGA and ACCC alleging that the current promotion of Nurofen by Reckitt Benckiser (Australia) Pty Ltd is in breach of the Competition and Consumer Act 2010 (misleading and deceptive conduct) and also a number of sections of the Therapeutic Goods Advertising Code (2007).

Finally, I believe this case shows up major defects in the current complaint handling system. Sponsors can disagree with the independent CRP determination and continue to promote while the problem is referred to the TGA. TGA regulation 9 determinations are slow (and in this case legalistic and missing the wood by focusing on a tree); meanwhile promotion continues. The sponsor can advise they have complied (using a strict legalistic interpretation of words) but in fact, questionable promotion continues.

It is my view that promotion should cease once a CRP determination has been made and until such time as any review has exonerated the claims made. The current system is heavily weighted in favour of the sponsor and provides consumers with little protection.