Court rules Kimberly-Clark ‘flushable’ wipes claim not misleading

The Federal Court has dismissed a case instituted by the Australian Competition and Consumer Commission (ACCC) against Kimberly Clark and their ‘flushable’ branded wipes.

The ACCC alleged that Kimberly-Clark was misleading consumers about the suitability of its wipes to be flushed down the toilet by describing its products as ‘flushable’ on product packaging and its website.

The ACCC argued that 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 that Kimberly-Clark did not expect its wipes to fully disperse in the sewerage system and that the wipes had inferior properties of breakdown and dispersion than toilet paper.

The Court 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.

ACCC Chair, Rod Sims, said that the ACCC took action because it was concerned that consumers were being misled about the very nature of the product they were buying.

“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,” Mr Sims said.

“The ACCC is carefully considering the Court’s decision.”

While the Court dismissed the ACCC’s case in relation to the suitability of Kimberly-Clark’s wipes to be flushed, the Court did find Kimberly-Clark made a false representation when it claimed its wipes were made in Australia, in breach of the Australian Consumer Law. In fact, Kimberly-Clark’s Kleenex Cottonelle range of wipes were variously made in Germany, South Korea and the UK.

“Kimberly-Clark misled consumers into thinking they were purchasing an Australian product when this was not the case,” Mr Sims said.

“Business must not mislead consumers about where their products are made, or they risk facing court penalties.”

Last April, in a similar case brought against consumer products group Pental, the Federal Court ruled in favour of the ACCC.

Pental was fined $700,000 for making false and misleading representations about its White King ‘flushable’ toilet and bathroom cleaning wipes.

Sydney Water spokesperson, Peter Hadfield, said, “We are obviously disappointed with the decision, but we must abide by the Federal Court ruling.

“Sydney Water removes over 500kg of wipes from our network every year at a cost of over $8 million dollars.

“We commenced our ‘keep wipes out of pipes’ campaign in 2015 and we have seen positive behavioural change in our customers. Hopefully the decision by the Federal Court won’t set back this behavioural change.

“Customers across Australia have been hit with expensive plumbing bills to remove blockages or to repair damage to their private sewer pipes caused by flushing wet wipes – one Sydney Water customer reported a $16,000 plumbing bill to repair damage to her sewer pipes caused by her flushing wet wipes!

“Despite the Federal Court decision, in order to save the environment and to prevent expensive future plumbing bills for Australian households, it is up to all consumers to stop flushing wet wipes or any other bathroom or personal hygiene products down the toilet.”

A hearing in relation to Kimberly-Clark’s ‘made in Australia’ claims will be held at a later date.

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