Re Pfizer Pty Ltd v Janssen-Cilag Pty Ltd [1992] FCA 37 (10 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: PFIZER PTY. LTD.
And: JANSSEN-CILAG PTY. LTD.
No. G127 of 1991
FED No. 24
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - Misleading or deceptive conduct - comparative advertising - representation in advertising campaign about the respective prices of competing human worm treatments.

Trade Practices Act 1974: s. 52, 53(c) and (e)

HEARING

SYDNEY
10:2:1992

Counsel for the Applicant: J.L.B. Allsop

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondent: S.D. Robb, Ms K.J. Howard

Solicitors for the Respondent: Michell Sillar McPhee Meyer

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the proceeding including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is another tussle for market share of medications for treatment of worms in human beings (the earlier battle is recorded in my judgment given on 24 September 1991), but this time the roles are reversed. The contestants are the applicant, Pfizer Pty Limited ("Pfizer"), which distributes the drug known as Combantrin, and the respondent, Janssen-Cilag Pty Limited ("Janssen"), which distributes the drug known as Vermox. In each case, the drug is distributed to pharmacists within Australia for sale to the public. Both drugs are sold in tablet and liquid (suspension) form.

2. Pfizer alleges that since about January 1991 Janssen has engaged in an advertising campaign involving the distribution of various documents and promotional objects, the broadcasting of radio advertising and the placing of advertisements in publications, all of which make claims comparing Vermox with Combantrin in respect of price: Vermox being said to be cheaper than Combantrin. By engaging in this form of comparative advertising Pfizer claims that Janssen has engaged in misleading or deceptive conduct or conduct which is likely to mislead or deceive, thus constituting contraventions of ss. 52, 53(c) and 53(e) of the Trade Practices Act 1974 ("the Act").

3. It is central to the case of Pfizer that the advertising campaign conducted by Janssen carries an essential theme or message that Vermox is cheaper than Combantrin as a universal proposition in the sense that Vermox is always cheaper than Combantrin, and that this is incorrect.

4. Pfizer also asserts that certain more specific representations are made in the various forms of advertising. The general representations about price (made in paragraphs 5(i) and (ii) of the further amended statement of claim) are said to be that:-
1. Whenever consumers purchase Vermox rather than Combantrin, they

will save money; and
2. It is cheaper to treat an average Australian family for threadworm
infection with Vermox than it is with Combantrin.

5. It is important, when considering the messages which are said to be conveyed by the various elements in the advertising campaign of Janssen, to keep in mind that treatments for threadworm in human beings are non-prescription drugs which are sold only in pharmacies and that the two principal products are Vermox and Combantrin. They are different drugs with different prices and different dosage regimes to which I shall refer later.

6. The general representations are said by Pfizer to have been made in the advertising campaign by the following means:

(a) A brochure entitled "Buy Vermox. Save Money. Simple" ("The Buy
Vermox Brochure").
(b) A promotional badge ("the Vermox Promotional Badge"). (c) Three radio

advertisements ("the Vermox radio advertisements"). (d) Document for use by pharmacists entitled "Anthelmintic Treatment

Price Comparison".
(e) An advertisement in Pharmacy Trade magazine, January 1991 issue. (f)

An advertisement in The Australian Journal of Pharmacy magazine,

volume 72, January 1991 issue.
(g) An advertisement in Pharmacy Trade magazine, February 1991 issue.

7. The representation that whenever consumers purchase Vermox rather than Combantrin they will save money is also said to have been published in a shelf display (which is also described in the evidence as a "wobbler", because of its propensity to wobble or sway while placed on the pharmacist's shelf) ("the Vermox Shelf Display"), and in what is described as a shelf talker, which is a placard that leaps to the eye rather than speaks ("the Vermox Shelf Talker").

8. The Buy Vermox Brochure is also said to contain a number of more specific representations relating to the price of the two products and two representations not relating to price. I will refer to these representations later. The Anthelmintic Treatment Price Comparison is alleged to contain other specific representations, all relating to the price of Vermox and Combantrin.

9. Janssen denies the making of each of the representations alleged by Pfizer.

10. The evidence in the case was given principally by affidavit, though there was some cross examination of Amanda Jane Whitehead, the product manager, pharmacy division, of Janssen. All representations turn on the Court's construction of the statements made in the relevant material.

11. The case illustrates clearly the proposition, which is plainly correct, that when interpreting documents such as the promotional material and radio advertisements of the kind with which this case is concerned, it is important not to construe them too finely or precisely. Some of the representations are made directly to the consumers of anthelmintics so that any influence they have upon them would be essentially of first impression, thus either influencing their decisions to purchase or use the product or to seek a pharmacist's advice. Other representations are made to pharmacists which may influence them in a variety of ways, but principally by influencing their decisions to purchase as stock one product rather than another or by increasing the quantity of the product purchased probably at the expense of the other or by influencing them in advice they may give to customers as to which product may be preferable to the other on the basis of price. The documents in this latter category require slightly finer analysis than the others because they are directed to pharmacists who by their training and experience would be aware of the various products in the anthelmintic market and of their characteristics and probably would read the written material more closely than would consumers. But again too fine or precise an analysis of the words used in the written material is an erroneous approach. However, even if one does engage in a fine analysis of the documents and other material, the conclusions which I have reached would not differ.
The Radio Advertisements

12. It is appropriate to commence with the radio advertisements because the two general representations (namely, (1) and (2) mentioned earlier) are said to be made in them. Resolution of the issues with respect to the radio advertisements will resolve most of the issues in the case because of the repetition in substantially the same form of the representations in the other material. The radio advertisements are the logical starting point because the consumer is likely to listen to the radio and hear the advertisements before going to a pharmacy, speaking to the pharmacist and seeing promotional material displayed in the pharmacy.

13. First, I shall examine each of the representations which Pfizer asserts has been made by Janssen in its advertising campaign and determine whether it has the meaning attributed to it by Pfizer. Then I shall turn to the question whether any of the alleged representations constitutes a misrepresentation and is misleading or deceptive.

14. There are three radio advertisements said by Pfizer to be misleading or deceptive, each involving one or more members of an imagined family centred on a suppositional Albert Einstein (I am sure that if Albert Einstein were alive today he would hope that the family is imagined and the representation of himself suppositional).

15. One advertisement involves an assumed Albert Einstein and his wife. It contains this statement (among others) attributed to Mrs Einstein:

"But does the genius know which threadworm
treatment can save you dollars?
Does he know that it can cost less to treat a
family with Vermox tablets than with the other one?
Does he know that the average family can save
dollars by buying Vermox?
...
You don't have to be a genius to know that for
verms, Vermox can save you dollars."

16. The second advertisement which involves the fictional Albert Einstein and Mrs Einstein attributes to Albert Einstein these words:

"Children cost enough already, so buy a
threadworm treatment that can save money. ...
The average family can save dollars by buying
Wermox tablets instead of the other ones.
You don't have to be a genius to know that for
worms, Wermox can save you dollars."

17. The third advertisement which features an assumed Albert Einstein and his son, "Young Albert" or "Einstein Jnr.", attributes to Einstein Jnr. these words:

"It took my mother ten seconds to discover that
when I get threadworms, it can cost less to
treat the family with Vermox tablets than with
the other ones. ...
Treating the average family with Vermox can save dollars.
And it's easy, everyone just takes one dose once. ...
You don't have to be a genius to know that for
verms, Vermox can save you dollars."

18. Each of the statements in the radio advertisement must be considered in the context of that advertisement as a whole. In each advertisement a comparison is being made between Vermox and its major competitor Combantrin (this is not in dispute). The reference in the advertisements to "Vermox can save you dollars" and the comparison between the cost of Vermox and "the other one" (Combantrin) with the statement that "it can cost less to treat a family with Vermox tablets than with the other one" and other like phrases is, in my view, a reference to the concept of the "average family". The notion of an "average family" is uncertain and the very uncertainty of the concept, in my opinion, places a difficulty in the path of the construction of the statement that "Vermox can save you dollars" as a representation of fact that a consumer will always save money by buying Vermox rather than Combantrin.

19. I have listened to each of the three advertisements a number of times and the impression I gained each time was that the word "can", when used in the context of "Vermox can save you dollars" or words to that effect, is not emphasised and the general tone of the advertisement is obviously light hearted and intended to be amusing.

20. The word "can" is used in each radio advertisement more than once with reference to the cost of Vermox and the comparative cost of Vermox and Combantrin. It is true that "can" may in some contexts mean "will". It can also mean, in other contexts, a mere chance or possibility of the occurrence of an event; for example, if you buy a lottery ticket you can win a million dollars means that there is simply a chance or possibility of winning, no matter how improbable that may be. The word "can", where used in the present advertisements, would convey the impression to the radio listener that, by buying Vermox rather than Combantrin, the average family is likely to save money; but it does not mean, in my opinion, that the average family will necessarily save money in every situation in which Vermox or Combantrin can be used.

21. Pfizer's case is that the representations are, by the use of "will" in (1) and the definitive and unqualified use of "it is" in (2), that it is a universal proposition that consumers who purchase Vermox rather than Combantrin will always save money or that it is always cheaper to treat an average family for threadworm infection with Vermox than it is with Combantrin.

22. I reject this construction of the radio advertisements. In my opinion, the radio advertisements cannot be construed as representing that (1) whenever consumers purchase Vermox rather than Combantrin they will save money; or (2) it is cheaper to treat an average Australian family for threadworm infection with Vermox than it is with Combantrin.
The Buy Vermox Brochures

23. These brochures were designed to be and were in fact distributed to pharmacists so that they could be placed near the anthelmintics section of the pharmacy and then picked up by members of the public. There is more than one form of the Buy Vermox Brochure and they are in evidence. They are all substantially the same, but there are some differences between them. Again these brochures must be looked at in the context of the whole advertising campaign and the other point-of-sale material including the Vermox Promotional Badge designed to be worn by pharmacy assistants, inviting the public to speak to the pharmacist. I shall direct my findings to the brochure exhibit 1. The other brochures (exhibits KFO1, 2 and 3) are different in some respects to exhibit 1 or each other; but nothing turns on those differences. Exhibit KFO1 has a dosage table, but no comparison of prices of the rival products, so my comments about exhibit 1 do not apply to this exhibit in respect of that comparison. The front cover of the brochure (exhibit 1) contains the following statements:

"Buy Vermox.
Save money.
Simple."

24. Inside the brochure the following headings appear, together with certain statements which are material for present purposes. The first heading reads:

"VERMOX. An effective threadworm treatment that
can save you dollars."

Underneath this heading in smaller print is the following:

"Treating your family for threadworm with Vermox
has two advantages. First, its simple. The
same dose for everyone, once is all that's
needed. And second, Vermox is economical. Look
at the comparison on the back page and you'll
see that Vermox can save a family** between $2
and $10 compared to the cost of Combantrin*."

25. The reader is directed to the footnote. "** Families including at least two adults".

26. The next headings in succession are:-
. "How you'll know if your family has threadworms." . "Why Australians are protected from other types of worm". . "Can you get worms from pets?" . "Compared with other treatments nothing could be simpler than

Vermox."
. "Available at your pharmacy."

27. Nothing relevant turns on any of these headings or the words that follow them with respect to the representations concerning price.

28. On the back page of the brochure there is a dosage table with the heading:

"Vermox Tablets and Suspension
can save you dollars
when treating your family."

The dosage table is divided vertically into two sections. The section on the left is titled "FAMILY". The section on the right is titled:

"Saving with VERMOX*
Compared with
COMBANTRIN*
treatment**"

The reader is directed to the footnotes.

"** Threadworm treatment. Combantrin treatment
cost based on dosage chart on Combantrin retail
pack using 75 kg for adults, 37.5 kg for
children and the smallest relevant pack sizes
available for the relevant dosage.
Combantrin and Vermox retail price is based on
the recommended price as per Pharmacy Guild OTC
Management Guide (NSW Branch) dated 24/10/90."

The dosage table states different dosages for families consisting of different numbers of people ranging from a "family" of two adults to two adults plus four children. For example, for a family of two adults and two children, the saving, if buying Vermox rather than Combantrin, is said to be:

"Tablets: $2.37
Suspension: $3.18"

29. The statement in the brochure that "... Vermox can save a family between $2 and $10 compared to the cost of Combantrin" and that "Vermox Tablets and Suspension can save you dollars when treating your family" again raises the meaning of the word "can". For the reasons which I gave when discussing the radio advertisements, which also apply in the case of the Buy Vermox Brochure, what the brochure means is that if Vermox is purchased rather than Combantrin it is likely to be cheaper for the family than Combantrin, not that it necessarily will be cheaper in every case. The likelihood of saving money is plainly restricted to the treatment of a "family" which at the lower end of the scale is defined by the dosage table and in a footnote to the first statement in the brochure as meaning two adults. The examples given in the dosage tables are plainly examples only. The largest family depicted is one of two adults with four children. Obviously a family may comprise more children and more adults.

30. It is also clear that the monetary savings indicated in the table, when treating families consisting of the number of adults and children specified in the particular example in the table, must be read by reference to the footnotes to which the attention of the reader is directed. The footnotes convey clearly that the statements in the brochure are directed at families consisting of at least two adults and that the actual savings mentioned will only occur in the circumstances there defined, namely, by reference to a weight of 75 kg for adults and 37.5 kg for children and the smallest relevant pack sizes available for the relevant dosage and provided that both Vermox and Combantrin retail prices are based on the recommended price as per Pharmacy Guild OTC Management Guide (NSW Branch) dated 24/10/90.

31. The words appearing on the front cover of the brochure must also be read in the context of the brochure as a whole and the other point-of-sale material. They do not mean that if you buy Vermox you will always or necessarily save money. In short, the contents of the brochure of which complaint is made by Pfizer do not mean what the general representations mentioned earlier assert. They are not speaking of universal truths that Vermox is always cheaper than Combantrin. The various statements in the brochure simply mean that if you buy Vermox then it is likely that you will save dollars compared to buying Combantrin when treating a "family".

32. Pfizer alleges in the further amended statement of claim, in addition to the two general assertions to which I have referred earlier, other and more specific meanings in relation to price attributable to the Buy Vermox Brochure, namely, those set out in paragraphs 7(i), (ia), (ib) and (ii) of the amended statement of claim. These allegations are:

"7(i) When treating families, as set out in the
Buy Vermox Brochure, for threadworm
infection consumers will save the
corresponding amounts also set out therein
by purchasing Vermox rather than Combantrin.
(ia) When treating families comprising of
the numbers of adults and children
specified in the Buy Vermox
Brochure, those adults weighing 75kg
each and those children weighing
37.5kg each, consumers will save the
corresponding amounts of money also
set out therein by purchasing Vermox
rather than Combantrin tablets and
suspension if both Vermox and
Combantrin are sold at their
recommended retail prices.
(ib) When treating families comprising of
the numbers of adults and children
specified in the Buy Vermox
Brochure, those adults weighing 75kg
each and those children weighing
37.5kg each, consumers will save the
corresponding amounts of money also
set out therein by purchasing Vermox
rather than Combantrin tablets and
suspension if both Vermox and
Combantrin are sold at their
recommended retail prices as per the
current Pharmacy OTC Management
Guide (NSW Branch) as at the date of
the representation to the pharmacist or consumer.
(ii) When treating a family for
threadworm infection a consumer will
save between $2 and $10 by
purchasing Vermox rather than
Combantrin for such treatment."

What I have said earlier as to the proper construction of the statements made in the Buy Vermox Brochure and mentioned in paragraphs 5(i) and (ii) of the further amended statement of claim applies also to the allegations made in paragraphs 7(i) and (ii) of that pleading. In relation to the allegations made in paragraphs 7(ia) and (ib), my earlier comments also apply; but in particular it is necessary to look to the footnotes. These two representations adopt certain assumptions from the footnote to the dosage table thus increasing their specificity but they fail to adopt certain other crucial assumptions. I have stated before the simple meaning I give to the brochure. That obviously can be put in a more details and complicated way but it would not be permissible to adopt certain details and ignore others.

33. The representations in paragraphs 7(ia) and 7(ib) centre around the recommended prices of each drug. The footnote to the dosage table clearly indicates that the retail prices are based on the recommended prices "as per Pharmacy Guild OTC Management Guide (NSW Branch)" dated 24/10/90. In my view, the representation pleaded in paragraph 7(ia) is clearly not correct as "recommended prices" must be looked at as defined in the footnotes. To establish representation 7(ib), it must be able to be said that a pharmacist or consumer, seeing the footnote reference to a guide of a particular date, would assume that it must be the current guide to recommended prices. But a pharmacist would know that these guides are published on a regular basis (the evidence contains guides published on 24 October 1990, 24 January 1991, 11 February 1991, 26 July 1991 and 23 August 1991) so I cannot imagine a pharmacist making the assumption that the brochure uses the current guide. A consumer must be assumed, as the guides are for use by pharmacists, to have very little, if any, knowledge of the guides, so it would be difficult to imagine them leaping to an assumption that the brochure uses the current guide. Representation 7(ib) is not made out.

34. Two other representations are alleged by Pfizer to be made in the Buy Vermox Brochure, but are not referable to price. Indeed, they are the only representations that are not based on assertions about price upon which reliance is placed by Pfizer. Those two representations are as alleged in paragraphs 7(iii) and (iv) of the further amended statement of claim in these terms:

"(iii) Vermox is effective against
whipworm, hookworm and roundworm in
a single dose.
(iv) As a consequence of the fact that
Vermox is administered in the same
single dose quantity, irrespective
of the consumer's weight, nothing
could be simpler for the treatment
of worms than Vermox."

35. The allegation in paragraph 7(iii) in the amended statement of claim is based upon the following statements which appear under the heading inside the brochure: "Why Australians are protected from other types of worm":

"Australian has a dry climate and the majority
of Australians (87%) lives in cities and large
towns with efficient sewerage systems.
These factors help protect us against rare soil-borne worms such
as whipworm, hookworm and roundworm.
Vermox is effective against all these three rare
worms - unlike pyrantel (Combantrin) which is
not effective against whipworm.
Infections with rare worms can be serious and
medical advice should always be sought."

36. The statements in the paragraph commencing "Vermox is effective against ..." are the statements which are complained of in paragraph 7(iii), but they are not made in the context of dosage. Dosage is discussed in this brochure in two other places. One under the heading "Vermox. An effective threadworm treatment that can save you dollars" where it is said "Treating your family for threadworm with Vermox has two advantages. First, it's simple. The same dose for everyone, once is all that's needed". These comments are clearly only in the context of the treatment of threadworm. The other section is headed "Compared with other threadworms nothing could be simpler than Vermox" and the following appears under it:

"One orange-flavoured tablet or one 5ml dose of
banana-flavoured suspension for each member of
the family is all that's needed.
There are no weight calculations; no dosage
calculations; and no chance of taking the wrong dose."

37. There is no reference at all to worms in that section. When read with the brochure as a whole, which is primarily concerned with threadworms, and the statement about infections with rare worms that "medical advice should always be sought" (suggesting that one dose may not be enough to cure the consumer of rare worms), the statement that "Vermox is effective against all these three rare worms - unlike pyrantel (Combantrin) which is not effective against whipworm" cannot be construed, in my opinion, as contended for by Pfizer, namely, that Vermox is effective against whipworm, hookworm and roundworm in a single dose.

38. The representation said to be made in paragraph 7(iv) of the further amended statement of claim is a curious allegation. In my opinion, the alleged representation is not made in the brochure at all with respect to worms generally. However it is clearly made in relation to threadworms. The front cover does contain the word "Simple". Under the heading:

"Vermox. An effective threadworm treatment that
can save you dollars."

there is a reference to dosage which I have already quoted. Also under the second last heading: "Compared with other treatments nothing could be simpler than Vermox" there appears the words I have already quoted.

39. These statements clearly represent that as a consequence of the fact that Vermox is administered in the same single dose quantity, irrespective of the consumer's weight, nothing could be simpler for the treatment of threadworms than Vermox. But that has not been alleged as false. The alleged representation is in the same terms but in relation to worms generally. For the reasons I gave with respect to the representation alleged in paragraph 7(iii), the alleged representation has not been made out.

Point-of-sale material
- The Vermox Promotional Badge
- The Vermox Shelf Display
- The Vermox Shelf Talker

40. The Vermox Promotional Badge is designed to be worn by pharmacy assistants in pharmacies. The Vermox Shelf Display is designed to hang somewhere in pharmacies and the Vermox Shelf Talker is designed to sit somewhere in pharmacies. No doubt both the Vermox Shelf Display and the Vermox Shelf Talker are intended to be displayed near Vermox products.

41. The Vermox Promotional Badge is said to contain the general representations pleaded in paragraphs 5(i) and (ii) of the further amended statement of claim. It contains the statement "Save dollars on family worm treatment. Ask me how." This statement cannot possibly be interpreted as representing that the purchaser will always save money when he treats the family with Vermox rather than Combantrin. I agree that this material together with the Vermox Shelf Display and the Vermox Shelf Talker must be considered in the context of each other and indeed I think also in the context of the Buy Vermox Brochure. Whether considered alone or together the result is the same in each case. The statement does not mention Vermox or Combantrin. Nor is it an unqualified representation. The statement "Ask me how" simply invites the customer to speak to the pharmacist. All the statement on the Vermox Promotional Badge could mean, adopting the most favourable construction to Pfizer, is that if you buy Vermox rather than Combantrin it is likely that you will save money on treating a family for worms; ask the pharmacist how this can be done. But this stretches the meaning of the words on the badge too far, notwithstanding the tractability of the english language. Even if this construction were correct it would not avail Pfizer for reasons I will come to later.

42. The Vermox Shelf Display and the Vermox Shelf Talker are said to contain the general representation pleaded in paragraph 5(i) of the further amended statement of claim.

43. The Vermox Shelf Display contains the statement:

"Buy Vermox, Save money.**
Simple. .. See consumer leaflet"

44. The Vermox Shelf Talker contains the statement:

"$Buy Vermox. Save money. Simple. $"

45. The statement "Save money" cannot be interpreted as representing that you will always save money when you buy Vermox rather than Combantrin. At most it means that if you buy Vermox rather than Combantrin it is likely that Vermox will be cheaper. But obviously the average consumer would make enquiries from the pharmacist and ascertain the price differentials and learn about the different dosage methods and things of this nature before making a purchase. What I said about the Buy Vermox Brochure applies substantially to the Vermox Shelf Display and the Vermox Shelf Talker.

46. The word "Simple" together with the words "Save money" must be viewed in the context of the advertising campaign of Janssen. "Simple" refers to the simplicity of the one dose, one treatment for Vermox. Vermox is advertised as being simple and convenient because the same dose administered once treats everybody above two years of age regardless of weight for threadworms. Also the Promotional Badge worn by the pharmacist invites the customer to make further enquiries from the pharmacist and the Vermox Shelf Display specifically directs the customer to read the brochure which is the Buy Vermox Brochure.
The advertisements in the Pharmacy Trade Magazine and the Australian Journal of Pharmacy Magazine

47. The advertisements are directed to pharmacists and not to members of the public. The purpose of the advertisements is clearly to encourage pharmacists to stock Vermox and to inform them briefly of the advertising campaign.

48. Each advertisement refers to the particular aspect of the campaign that buying Vermox can save money. For example the advertisement in the Pharmacy Trade Magazine of January 1991 says:

"First, that treating the family with Vermox can
save dollars when compared with the other
leading worm product ..."

The advertisement in the Australian Journal of Pharmacy, volume 72, January 1991 states:

"A spokeswoman for Janssen-Cilag said treating a
family with Vermox could save money compared
with using other products ..."

The advertisement in Pharmacy Trade Magazine of February 1991 states:

"According to a Janssen-Cilag spokesperson:
'Consumers have realised that Vermox is the
family threadworm treatment that can save them
money. In these tough times, everyone's looking
to stretch dollars. What Vermox offers is really
effective threadworm treatment that saves money
compared to the other leading brand. Why should
people pay more?'"

Each of these advertisements engages in a comparison between the cost of Vermox and Combantrin. The possibility of saving money is confined to treatment of a family. The use of the word "can" has the same connotation as it does in the radio advertisements which I have previously discussed. In the lastmentioned of the three advertisements the statement is made:

"What Vermox offers is really effective
threadworm treatment that saves money compared
to the other leading brand."

This statement read alone may go some way to supporting the case of Pfizer, but it cannot be read alone; it must be read in the context in which it appears and that is in the fuller statement mentioned by me earlier. When thus read it does not in my opinion support the making of the representations relied on by Pfizer.

49. It is also important to bear in mind that the statements in each of these advertisements are not made to the general public, but to pharmacists. They are skilled professional people and obviously have knowledge of Vermox and Combantrin. They must be presumed to know the relative wholesale prices of each product and they would, of course, know their own retail prices and those of certain of their competitors. They would also know or have available to them in documented form at a glance the dosage requirements for both Vermox and Combantrin and the different dosage regimes.
Anthelmintic Treatment Price Comparison

50. This chart was distributed to pharmacists in December 1990 and in January 1991. It was not made available to members of the public. The chart shows the calculations on which the table contained in the Buy Vermox Brochure was based by Janssen. The chart contains six vertical columns. Column 1 indicates the particular family group, commencing with two adults and concluding with two adults and four children. Column 2 specifies the Combantrin treatment packs required. Column 3 states the total retail price of the Combantrin packs. Column 4 states the Vermox treatment packs required. Column 5 shows the total retail price of the Vermox packs. Column 6 states the difference between the two prices (Combantrin and Vermox) as the "Saving with Vermox".

51. Columns 3, and 5 direct the attention of the reader to the footnote:

"Combantrin and Vermox retail price is based on
50% mark-up as per Pharmacy Guild OTC Management
Guide (NSW Branch) dated 24/10/90. Combantrin
treatment price based on dosage chart on
Combantrin retail pack using 75kg for adults and
37.5kg for children and the smallest relevant
pack sizes applicable for the relevant dosage."

52. The representations which Pfizer alleges are made by the Anthelmintic Treatment Price comparison are those mentioned earlier as representations of a general nature in paragraphs 5(i) and (ii) of the amended statement of claim. The other representations alleged to be made are those in paragraphs 7A(i), (ii) and (iii) of the amended statement of claim, namely:

"7A. ...
(i) When treating families as set out in
the Anthelmintic Treatment Price
Comparison for human infesting worms
consumers will save the
corresponding amounts also set out
therein by purchasing Vermox rather
than Combantrin.
(ii) When treating families comprising of
the numbers of adults and children
specified in the Anthelmintic
Treatment Price Comparison, those
adults weighing 75kg each and those
children weighing 37.5kg each,
consumers will save the
corresponding amounts of money also
set out therein by purchasing Vermox
rather than Combantrin tablets and
suspension if both Vermox and
Combantrin are sold at their
recommended retail prices.
(iii) When treating families comprising of
the numbers of adults and children
specified in the Anthelmintic
Treatment Price Comparison, those
adults weighing 75kg each and those
children weighing 37.5kg each,
consumers will save the
corresponding amounts of money also
set out therein by purchasing Vermox
rather than Combantrin tablets and
suspension if both Vermox and
Combantrin are sold at their
recommended retail prices as per the
current Pharmacy OTC Management
Guide (NSW Branch) as at the date of
the representation to the pharmacist or consumer."

53. Pharmacists who read the chart must be presumed to know their own retail prices and to immediately realise if the retail prices in the chart are different to their own prices. Pharmacists must also be presumed to understand the chart and the footnotes to it. They can easily compare their own retail prices with those in the chart and determine whether there will be a saving with Vermox as specified in the chart by buying the treatment packs indicated in the chart. It is obvious that the calculations are examples only and the pharmacist would realise this. Also, the specified savings will be different depending on the treatment packs required for Vermox and Combantrin and their respective retail prices. A pharmacist could not in my opinion interpret the chart as indicating what will necessarily be savings with Vermox as opposed to Combantrin in every case.

54. For those reasons and the reason I have given in relation to the representations alleged in paragraphs 5(i), 5(ii), 7(i), 7(ia) and 7(ib), the representations that are asserted by Pfizer as being made in the chart are not in my view made in it.

55. In the result none of the representations alleged by Pfizer have been made in the advertising material of Janssen, and that is sufficient to dispose of the case in favour of Janssen. But as the question of whether any of the alleged representations are misleading or deceptive is the subject of evidence and full argument I shall deal with it.
Were the alleged representations misleading and deceptive?

56. Vermox and Combantrin each treats threadworm in human beings. They are based on different drugs. Vermox is based on mebendazole and Combantrin on pyrantel. The drugs have different dosage requirements. For Vermox, one tablet (or 5ml suspension) treats one person irrespective of age or weight. To purchase Vermox to treat the family it is necessary to buy as many tablets as there are persons in the family or that number of persons multiplied by 5ml of suspension. For Combantrin, dosage is based on weight; the greater a person's weight the more Combantrin is required. Hence to work out how much Combantrin is required the weight of each member of the family must first be determined, then the dose required for that weight must be calculated and the total amount then determined. The steps involved in calculating the quantity of Combantrin to purchase are more complex than those required to determine how much Combantrin is required.

57. Both Pfizer and Janssen recommend that when a worm infection is suspected all family members should be treated at the same time to avoid reinfection. As a result both drugs are usually marketed to families as opposed to individuals.

58. It is obvious that there are marketing disadvantages created for Combantrin by the fact that its dosage is based on weight, so naturally enough Pfizer has introduced means to enable pharmacists and consumers to short-cut the full and accurate calculation of correct dosages, thus facilitating the selection of the appropriate quantities of Combantrin. The two methods adopted by Pfizer are what is called the Pack Selection Guide or Treatment Wheel (to which I shall refer as the "Treatment Wheel") which is given by Pfizer to pharmacists and the Dosage Chart which appears on most packs of Combantrin. The Treatment Wheel is, as its name suggests, a cardboard wheel which one turns to match the size of a family appearing on the outer circumference of the wheel base ranging from one adult to two adults and four children. The circulating wheel then states the number of packs required either in tablet, sachet or suspension form. The Dosage Chart appears on at least the 50ml suspension, 15ml suspension, 6 normal strength tablets and 18 normal strength tablets packs. On all those packs, except for the six tablets pack, the dosage chart has two columns, one referring to approximate age and the other to dosage. On the six tablet pack there is a third column headed "weight". On all those packs there is a footnote to the approximate age heading stating "The approximate age is included only as a guide". The other packs in evidence are specialised packs in that they are designed for a particular type of customer. For example, the sachet designed for a child 1-5 years of age and the sachet designed for a child 6-10 years of age, both meant to be "one use" packs. The other pack in evidence is an "Adult Pack" containing six double strength tablets designed for two adults to take three tablets each but it does note that if an adult weighs less than 45kg, he or she only needs two tablets.

59. When Janssen made the calculations to be used in the Buy Vermox brochures it made assumptions as to dosage of Combantrin and these assumptions were based on the Treatment Wheel and the Dosage Chart appearing on Combantrin packs. This is clear from the evidence including the footnotes under the Dosage Table in the Buy Vermox brochure and the Anthelmintic Treatment Price Comparison and the evidence of Ms A.J. Whitehead.

60. Pfizer's case that the representations are misleading or deceptive is based upon a comparison of the prices of Vermox and Combantrin on the assumption that Combantrin is sold and used according to the actual dosage recommendations. This would necessarily entail pharmacists or consumers ascertaining the particular weights of each member of the family concerned, calculating the precise dosage and then selecting the appropriate pack of tablets or suspension or both. In my opinion, it is unreal to assume that they would engage in this activity when Pfizer has made available the Treatment Wheel and the Dosage Charts on the Combantrin packs for the specific purpose of determining the dosage requirement. The pharmacist is likely to use the Treatment Wheel as what counsel for Janssen described as a "ready reckoner" to recommend the purchase of products supplied in the window of the Treatment Wheel under the heading "Packs Required" corresponding to the appropriate person or persons being treated. Alternatively, the pharmacist may examine a pack of Combantrin and determine the appropriate dosage according to the Dosage Chart and then select the appropriate pack. Alternatively, he may engage in a process of using both instruments, that is the Treatment Wheel and the Dosage Charts on the packs of Combantrin. Realistically one of these two means is likely to be used by the pharmacist. If he does not have the Treatment Wheel then he may follow the Dosage Charts or vice versa. Consumers themselves, may have direct access to the Treatment Wheel, but generally would not and would be likely to consult the pharmacist. Even if they do not do so, they would be likely to follow the Dosage Chart. The words "Dosage Chart" appear in large print on the packets of Combantrin and the consumer and the pharmacist is entitled to assume that the manufacturer of Pfizer has provided reliable dosages for adults and children on the charts notwithstanding the footnote that the approximate age is included only as a guide. Also it is unreal to suggest that the consumer would ignore the Dosage Chart when preparing to administer Combantrin and that he would produce the family scales, if any, and then determine either by mathematical processes or by the use of a calculator the precise dosage for each family member. It is to obviate the necessity of these cumbersome tasks that the Treatment Wheel and the Dosage Chart were introduced by Pfizer.

61. I should add that very complicated calculations have been put before the Court by Pfizer as to the appropriate dosages, based on the weight of the person to be treated. The very complexity of the processes and calculations demonstrate to me that it is simply not commercially realistic for Combantrin to be sold on the basis of calculations according to those weight dosage requirements rather than by resort to the very measures which Pfizer puts forward as the appropriate measures to determine dosage, namely, the Treatment Wheel and the Dosage Charts on Combantrin packages. Furthermore, Pfizer recommends the use of these measures. In evidence are some of Pfizer's brochures one of which is a publication called "Second Glance", volume 3, no. 1 of June 1989, which stated under the heading "Merchandising Tips":

"Most medicines you sell have specified dosages
for different age groups. Combantrin is no
different. Each pack gives a guide as to the
dose that should be taken by the customer and
her family.
However, as a means of making dosage
recommendations easier, Pfizer has a special
dosage chart available for assistants and
pharmacists. If you don't have one of these
make sure you ask your Pfizer representative for one."

The "Special Dosage Chart" referred to is the Treatment Wheel. Thus Pfizer itself recommends the use of both the Treatment Wheel and the Dosage Chart appearing on Combantrin packages as means of determining the appropriate dosage of Combantrin.

62. If it is correct to compare the prices of Vermox and Combantrin by use of the Treatment Wheel or the Dosage Chart on Combantrin packages or both (and in my opinion it is), the only occasion on which Combantrin is cheaper than Vermox is where there is a single adult with no children, and this is not a family, even in 1992. The reason for this is that the Treatment Wheel recommends that packs be selected on the basis that a single adult weighs 75kgs and recommends purchasing more Combantrin for additional persons and this destroys its price advantage for groups of people with low weight.

63. But even if the true dosage of Combantrin is assessed in the way for which Pfizer contends, that is by using the prescribed dosages without resort to the Treatment Wheel and the Dosage Chart on the packaging, and, assuming the representations about price are made as asserted by Pfizer, there still will be no misrepresentation in the advertising campaign by Janssen. The reason for this is that, if the proper dosage of Combantrin is assessed on body weight, namely, by using the prescribed dosages of 10mg (tablets) per 1kg bodyweight or 1ml (suspension) per 5kgs bodyweight. Combantrin is cheaper than Vermox where a person or persons weigh less than 75kg. But the advertising of Janssen does not pose the size of a "family" as being less than two adults, so that the maximum weight of 75kg could not realistically apply to a "family" of two adults.

64. Whether Vermox will be cheaper than Combantrin depends, of course, upon the retail price charged by the particular pharmacist for each product. Janssen made its calculations forming the basis of its price comparison on the basis of the recommended retail prices in the then current Pharmacy Guild OTC Management Guide dated 24 October 1990 using the 50% mark-up recommended price for each product. In my opinion this was a reasonable course of conduct for it to pursue. There was evidence of an anthelmintic retail price comparison survey which showed that pharmacists used a variety of mark ups on Vermox and Combantrin ranging from 30% to 100% but most between 50% and 70% and almost all pharmacists used the same mark ups for each product.

65. The Pharmacy Guild did publish a later guide on 28 January 1991; but a comparison of the prices in that guide between the two products results in a lesser, though still comparable, saving with Vermox for the families represented in the table in the brochure.

66. For these reasons, even if Pfizer had made out its case that Janssen made the representations as pleaded by it (which it has not), it has not established a case of any relevant statements being untrue, misleading or deceptive.

67. Pfizer has failed to establish its case. The application is dismissed with costs, including reserved costs.