The Australian Competition and Consumer Commission (ACCC) is taking subsidiaries of pharmaceutical giants GlaxoSmithKline (GSK) and Novartis to court over misleading marketing of the Voltaren Osteo Gel and Voltaren Emulgel pain relieving gels.

It is alleged that both firms claimed that the Osteo Gel was specifically formulated for treating osteoarthritis conditions, and was more effective than Emulgel to treat those conditions. However, the ACCC said the two products were in fact identically formulated. The active ingredient, diclofenac diethylammonium gel contained in both products acts to reduce local pain and inflammation wherever it is applied, the ACCC said.

ACCC Chairman Rod Sims said:  “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.”

Price sampling conducted by the ACCC at supermarkets and pharmacies found that Osteo Gel was often sold at a price premium to Emulgel. For example, Osteo Gel 150g was found in-store at up to $7.50 or a third more than Emulgel 150g. The recommended retail price of Osteo Gel 150g was $28.99 compared with $25.99 for Emulgel 150g.

Sims added: “We allege GSK and Novartis engaged in a deliberate commercial strategy to differentiate the products in a way that was likely to mislead consumers.

“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.”

In December last year, Australia's Federal Court ordered Reckitt Benckiser to pay a penalty of $6 million for making representations that Nurofen Specific Pain products were each formulated to specifically treat a particular type of pain when this was not the case.

GSK acquired Novartis’ portfolio of Voltaren products in 2016 and has been responsible for marketing and selling Voltaren products since then. The ACCC said GSK is the leading supplier of over-the-counter analgesic products in Australia, with brands including Panadol and Voltaren.

Responding to the allegations GSK stated: "We are disappointed the ACCC has decided to commence proceedings against us. We have been cooperating with them and proactively trying to understand their concerns related to our products, however to date they have not provided clarity about the basis for their concern.

"Our experience tells us that people self-select pain relief based on their symptoms and/or a healthcare professional’s recommendation. We believe the case of Voltaren Osteo Gel 1% is an example of this. While it 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 approved instructions for use in osteoarthritis.  We were of the view the product name reflects this."

The ACCC alleges that Novartis and GSK made false or misleading representations on product packaging used between October 2010 to March 2017 and on the product's website.  The ACCC acknowledged that in March this year GSK amended the Osteo Gel packaging to include the statement “Same effective formula as Voltaren Emulgel” directly under the product name. However, the ACCC alleges that this amended packaging is still misleading.

The ACCC is seeking declarations, injunctions, pecuniary penalties, a publication order, the imposition of a compliance program and costs.