Chemist Warehouse’s “Free Generic Lipitor” ad campaign was “likely to mislead or deceive” consumers, the Supreme Court of Queensland believes.
Justice Philip McMurdo, announced his ruling yesterday in a case between pharmacists, Malcolm Anderson, Ian Nash and John Caris, against Chemist Warehouse stores in Cairns, Southport, Burleigh Waters, Nerang and Coolangatta, Queensland.
While the ad was found to be likely to mislead or deceive, Justice McMurdo declined to grant an injunction against the respondent pharmacies.
He said they had no intention to mislead or deceive, based on evidence given by Damien Gance, Chemist Warehouse group commercial manager, and because the Court had no reason to assume the pharmacies would not give proper regard to the terms of the judgement in any future ads.
The Court found the advertisements were likely to mislead or deceive by:
(a) listing prices for the supply of Atorvastatin Sandoz, Lipitor and Trovas, being medicines on the Pharmaceutical Benefits Scheme (PBS) Schedule, to members of the public without identifying that:
(i) while the supply of Lipitor to a person at the listed price of $35.40 could be taken into account for the purposes of determining the person's (and the person's family's) eligibility to be issued with a concession card under Division 1A of the National Health Act 1953;
(ii) the supply of Atorvastatin Sandoz at $14.99 or Trovas at $19.99 could not be taken into account for that purpose; and
(b) stating that the frequency of supply of Atorvastatin Sandoz or Trovas at those prices would be governed by standard PBS regulations, when supplies of those products at those prices would not be supplies under the PBS.
The ruling follows the TGA’s decision not to penalise the franchise, despite saying the company breached the Therapeutic Goods Advertising Code 2007, as reported by Pharmacy News.