The Australian Competition & Consumer Commission (ACCC) has taken legal action against GlaxoSmithKline Healthcare Australia (GSK) and Novartis Consumer Health Australasia for their over-the-counter (OTC) pain relief products Voltaren Osteo Gel and Voltaren Emulgel.
GSK acquired Novartis’ portfolio of Voltaren products in 2016.
Both anti-inflammatory drugs contain diclofenac diethylammonium gel 11.6mg/g, but the ACCC said the firms “represented that Osteo Gel was specifically formulated for treating osteoarthritis conditions, and was more effective than Emulgel to treat those conditions, when the two products are identically formulated.”
“We allege that consumers are likely to have been misled into purchasing Osteo Gel thinking that it is different to Emulgel and more effective for treating osteoarthritis conditions, when this is not the case,” said ACCC Chairman Rod Sims in a statement.
The products are equally effective in treating osteoarthritis, as well as a range of other pain conditions, he added.
Packaging and cost
In March, GSK added: “Same effective formula as Voltaren Emulgel” to the Osteo Gel packaging, which the firm said makes it “clearer that the formulation is the same as Voltaren Emulgel” and seeks to “ensure we continue to meet the expectations of regulators and consumers.”
However, the ACCC said the amended Osteo Gel packaging is also likely to be misleading.
In addition, the Commission said Osteo Gel is often sold at higher prices – in once instance up to 33% more – than Emulgel.
GSK and Novartis engaged in a “deliberate commercial strategy to differentiate the products in a way that was likely to mislead consumers,” said Sims.
GSK and Novartis respond
Earlier today, GSK responded to the ACCC’s investigation saying the Commission has not yet “provided clarity” about the basis for its concern.
“While [Voltaren Osteo Gel 1%] contains the same effective formulation as Voltaren Emulgel, we believe the design of the packaging helps people with osteoarthritis open the cap more easily and the instructions for use reflect the TGA [Therapeutic Goods Administration] approved instructions for use in osteoarthritis…We were of the view the product name reflects this,” the firm said in a statement.
As GSK acquired Novartis' portfolio of Voltaren products in 2016, the former has been responsible for marketing and selling Voltaren products since that time, a Novartis spokesperson told us.
"Novartis is aware of the ACCC proceedings and suggests that all enquiries should be directed to GSK," the spokesperson added.
A ‘pained’ history
The ACCC said it was concerned by GSK and Novartis’ conduct given the Federal Court’s decision in April last year, which ordered Reckitt Benckiser to pay AUD$1.7m ($1.3m) for misrepresenting its Nurofen Specific Pain products.
“The alleged conduct is particularly concerning, given the significant penalties handed down by the court against the makers of Nurofen for what we consider to be similar conduct,” said Sims.
Similarly in August, the New Zealand Commerce Commission issued warning to GSK and AFT Pharmaceuticals for marketing products which contain the same active ingredients for different indications.