The Full Federal Court has dismissed an appeal by the ACCC and found that Kimberly-Clark Australia Pty Ltd (Kimberly-Clark) did not make false and misleading claims that its Kleenex Cottonelle toilet wipes were flushable.
The ACCC alleged that by labelling these products as “flushable”, consumers would believe the Kleenex wipes products had similar characteristics to toilet paper and would break up or disintegrate in a similar timeframe.
The ACCC relied on evidence from Australian water authorities that face significant problems when non-suitable products are flushed down the toilet as they contribute to blockages in household and municipal sewerage systems, known as “fatbergs”.
In 2019 the trial judge dismissed the ACCC’s case, ruling that to prove its case against Kimberly-Clark, the ACCC was required to prove that the Kleenex Wipes had in fact caused or contributed to real harm in particular instances.
“We brought these proceedings because we were concerned that consumers were being misled about the very nature of the product they were buying, and because of increasing problems reported by Australian water authorities as a result of non-suitable products like wipes being flushed down the toilet,” ACCC Chair Rod Sims said.
On appeal, the ACCC argued that the trial judge had made an error by requiring actual harm, and had failed to consider the ACCC’s evidence as a whole when deciding whether the flushable representation was false or misleading.
“We sought clarification from the Full Federal Court on whether proof of actual harm is required to establish that a claim is misleading,” Mr Sims said.
“But we are pleased that our court action has brought attention to this issue, and has made consumers aware that flushing wipes can cause significant blockages to plumbing and sewerage systems, damage to equipment and environmental harm and imposes significant cost of removing fatbergs on water authorities.”
In its judgment, the Full Federal Court recognised this concern, noting that “Blockages and fatbergs pose what has become an increasing problem for households and municipal waste water authorities. One response would be to introduce legislation or standards governing the characteristics of what can and what cannot be marketed or sold as ‘flushable’.”
Australian water authorities are leading the development of an Australian standard on flushability. Until this standard is finalised, the strong message from water authorities and plumbers alike is there are only three things that should be flushed down a toilet: ‘pee, poo and toilet paper’.
The ACCC is carefully considering the judgment.
Background
On 12 December 2016 the ACCC instituted proceedings in the Federal Court against Kimberly-Clark Australia Pty Ltd (Kimberly-Clark) and separately against Pental Limited and Pental Products Pty Ltd, alleging that they each made false or misleading representations in relation to ‘flushable’ wipes marketed and supplied in Australia.
On 28 June 2019 the Federal Court judgment dismissed the majority of the ACCC’s case, except for finding that Kimberly Clark’s ‘made in Australia’ representation was misleading.
On 26 July 2019 the ACCC filed an appeal against Federal Court’s decision in relation to evidence of harm for the misleading representations.
Kimberly-Clark discontinued supplying the Kleenex Wipes in May 2016. The ACCC’s proceedings only related to the Kleenex Wipes sold between May 2013 and May 2016. Kimberly-Clark has since introduced a new ‘flushable’ wipe product.
