The Federal Court has dismissed the Australian Competition and Consumer Commission’s (ACCC) case against Kimberly-Clark’s flushable wipes.
The ACCC had alleged that in describing its products as ‘flushable’ on product packaging and its website, Kimberly-Clark had misled consumers about the suitability of its wipes to be flushed down the toilet.
ACCC chair Rod Sims said the consumer watchdog argued Kimberly-Clark’s wipes did not break apart quickly once flushed and therefore should not have been considered ‘flushable’.
However, the court found that Kimberly-Clark’s claims were not false or misleading.
The court ruled there was insufficient evidence to show that Kleenex Cottonelle ‘flushable’ wipes in this case, as opposed to ‘wipes’ products more broadly, had contributed to the problems in municipal sewerage systems.
The court also found that it was reasonable for Kimberly-Clark to rely on guidelines, developed largely by nonwovens industry associations, to substantiate its ‘flushable’ claims.
The ACCC had argued these guidelines were not an independent testing regime, as they were developed by the manufacturers of ‘flushable’ labelled products, without substantial input from wastewater authorities.
The court noted Kimberly-Clark did not expect its wipes to fully disperse in the sewerage system and that Kimberly Clark’s wipes had inferior properties of breakdown and dispersion than toilet paper.
The court also noted this was consistent with a conclusion the wipes posed a risk of harm to the sewerage system but there was insufficient evidence this harm actually occurred, except in limited circumstances.
“The ACCC took this action because it was concerned that consumers were being misled about the very nature of the product they were buying,” Sims said.
“We also took this case because we are aware of increasing problems reported by Australian water authorities as a result of non-suitable products being flushed down the toilet and contributing to blockages and other operational issues.”
Doug Cunningham, managing director, Kimberly-Clark Australia and New Zealand said: “At Kimberly-Clark we have always been committed to ensuring that our flushable wipes products meet or exceed international guidelines for flushability. We know that our flushable wipes are suitable to be flushed and this has now been confirmed by the Federal Court of Australia.”
Sims said the ACCC is considering the court’s decision.
“Kimberly-Clark misled consumers into thinking they were purchasing an Australian product when this was not the case,” Sims said.
“Business must not mislead consumers about where their products are made, or they risk facing court penalties.”
A hearing on relief in relation to Kimberly-Clark’s ‘made in Australia’ claims will be held at a later date.
The ACCC instituted proceedings against Kimberly-Clark and separately against Pental Limited and Pental Products in December 2016.
In April 2018, the Federal Court ordered Pental to pay $700,000 for making false and misleading representations about its range of White King ‘flushable’ bathroom cleaning wipes after Pental admitted its flushable representations were false and misleading.
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