Pharmaceuticals and Section 52

Apotex Pty Ltd (formerly GenRx Pty Limited) v Les Laboratoires Servier (No 2) [2008] FCA 607 (8 May 2008)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2008/607.html?query=%5eApotex

In a decision handed down only last week, the Federal Court provided an analysis of s 52 of the Trade Practices Act in the pharmaceuticals context. The following principles outlined by her Honour outlined an apt summary of the framework that was applied to the facts in suit.


45 In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act:

• It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 at [34]).

• Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J).

• Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself.

• It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre [1978] HCA 11; (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent.
When I discuss doctors, pharmacists and patients, it is in the context of these principles.


Her Honour also summarised the relevant conclusions at [151]:

151 For convenience and in summary, the conclusions to which I have come are as follows:

• The stamp issued by Servier to doctors to be printed on prescriptions for Coversyl contains representations that are misleading or deceptive or likely to mislead pharmacists and patients within s 52 of the Act. The stamp representations are not likely to mislead or deceive medical practitioners.

• Servier is liable for the stamp representations and has thereby contravened s 52.

• The first banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners.

• The first whole page advertisement caused to be published by Servier contains a representation as to improved stability that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52.

• The second whole page advertisement caused to be published by Servier contains a representation in relation to the indication for Coverysl for stable coronary artery disease that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52.

• The second banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners.