Federal Court finds Kimberly-Clark did not mislead consumers on flushability

The Federal Court of Australia has dismissed an action by the Australian Competition and Consumer Commission (ACCC) which claimed that Kimberly-Clark mislead consumers in the advertising of its flushable wipes.

The ACCC claimed that between May 2013 and May 2016 the FMCG giant breached Australian consumer law in the advertising of Kleenex Cottonelle
Flushable Cleansing Cloths and alleged that the wipes cause harm to household and municipal sewerage systems.

The wipes were marketed as “flushable” in contrast to other wipe products which were marketed with no reference to flushability or with a recommendation: “Do not flush”.

Justice Jacqueline Gleeson found the “flushability” representation was not false, misleading or deceptive or likely to mislead or deceive.

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. The ACCC said the Kleenex Cottonelle range of wipes were made in Germany, South Korea and the UK.

Kimberly-Clark said in a statement that it is “delighted” at the court decision.

“At Kimberly-Clark we have always been committed to ensuring that our flushable wipes products meet or exceed international guidelines for flushability,” Doug Cunningham, managing director, Kimberly-Clark Australia and New Zealand said.

“We know that our flushable wipes are suitable to be flushed and this has now been confirmed by the Federal Court of Australia.”

The FMCG giant said Kleenex flushable wipes meet or exceed the requirements set out in the INDA/EDANA flushability guidelines, which are the only widely accepted international guidelines for assessing flushability.

The Federal Court concluded that the guidelines represent a “conscientious and scientific effort to establish an appropriate framework for assessing flushability”.

The ACCC said it is carefully considering the Court’s decision.

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

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

Sarah Agar, head of Campaigns and Policy at Choice, which was active in campaigning against the wipes, said the group was “really disappointed” with the Federal court decision.

“This is terrible news for people who care about the environment and our waterways,” Agar said in a statement.

She said the decision means that companies “won’t be held to account for clogged sewers, damaged waterways and terrible plumbing bills”.

The ACCC first launched its action against Kimberly-Clark in 2016, and argued that most consumers think “flushable” means “break down” or “disintegrate”.

In 2018, the Federal court found Pental Products and Pental Limited, the manufacturer of White King “flushable” wipes, guilty of making false and misleading representations, in particular that the wipes would break down in the sewerage system, like toilet paper does. Pental was fined A$700,000 as a result of the case.

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