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ACCC loses appeal against ruling on ‘flushability’ of Kimberly-Clark wipes

The Full Federal Court has dismissed an appeal by Australia’s consumer watchdog, ACCC, over a ruling that Kimberly-Clark Australia did not mislead consumers on the ‘flushability’ of its Kleenex Cottonelle toilet wipes.

The ACCC alleged that by labelling the products as “flushable”, consumers would believe that they had similar characteristics to toilet paper and would break up or disintegrate in a similar timeframe.

In June 2019, the trial judge dismissed the ACCC case, ruling that to prove its case, the ACCC was required to prove that the Kleenex Wipes had caused or contributed to real harm in household and municipal sewerage systems.

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. 

“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.

“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 “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’,” the judgement suggested.

Australian water authorities are currently developing an Australian standard on flushability.

Kimberly-Clark Australia welcomed the Federal Court decision, saying the company has always been confident in the accuracy of the claims.

“The Court’s unanimous decision that claims made by Kleenex with regard to flushable cleansing cloths were not misleading is testament to the quality and safety of this product. The wipes were designed to be, and are, suitable to be flushed,” Kimberly-Clark Australia said in a statement on Monday.

“The issue has now been tested twice in the Federal Court, and on both accounts our flushable cleansing cloths were found to be flushable, as accurately stated on packaging.”

The company stated that the product “meets or exceeds the strict requirements” set out in the International Nonwovens & Disposables Association (INDA) and European Disposables & Nonwovens Association (EDANA) flushability guidelines, which remain the most widely accepted international guidelines.

The FMCG giant said it takes the truthfulness and accuracy of the claims in its marketing “extremely seriously” and will continue to communicate with consumers about what is and is not suitable for flushing.

The ACCC said it is “carefully considering the judgment”. 

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