Mallesons Stephen Jaques has acted for Wyeth Consumer Healthcare in a claim against Reckitt Benckiser, in a comparative advertising case that got engines racing.
The Australian Self Medication Industry Panel (ASMI) found in favour of Wyeth on Monday, stating that the overall potential of a Reckitt campaign advertising Nurofen Zavance to be misleading and deceptive was "immense."
Mallesons partner Katrina Rathie said speed was the essence of the case, with the $11 million campaign featuring a racing car, along with the claim that the product was "Twice as Fast." The claim was followed by an asterisk and the qualification *"Absorbed up to twice as fast as standard Nurofen".
The losing car was decked out in the distinctive teal blue colour of the competing product, Advil, manufactured by Wyeth.
"In the pharmaceutical market speed of release for analgesics, or painkillers as they are colloquially known, has been critical," Rathie said.
"In the printed material and in the television commercial, the blue and yellow car is the losing car, and it looks twice as slow, when [the advertisement] shows the speedometer, one is 182 km, and the other around 91km."
Rathie observed that comparative advertising, like the memorable Duracell Bunny campaigns, has seen resurgence since the recession.
"Comparative advertising has always had its time and place, and I think in tough times and in tough markets where people are trying to win market share from category leaders, it does become attractive."
Rathie warned businesses to be extremely careful in their use of comparative advertising, and not to rely on disclaimer clauses.
"There are various ways that you can do comparative advertising in a very legal way, but it just needs to be very carefully considered as an overall concept at the beginning."
She also praised the speed of the ASMI panel's unanimous finding on the matter.
"Reckitt launched a complaint in May, and a decision was given on Monday, so pretty much under two months from start to finish which I thought was twice as fast as the courts."
- Laura MacIntyre