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ACCC appeals court’s Kleenex ‘flushable’ wipes decision

The consumer watchdog will fight the Federal Court’s decision to dismiss part of its case against Kimberly-Clark’s ‘flushable’ wipes.

The Australian Competition and Consumer Commission (ACCC) first took action against Kimberly-Clark Australia in December 2016, arguing the use of ‘flushable’ on product labels misled consumers about the suitability of its Kleenex Cottonelle wipes to be flushed down the toilet.

But last month, Justice Jacqueline Gleeson found the ACCC’s case failed except in relation to a representation that the wipes were made in Australia, which was found to be false.

While she acknowledged wipe products generally were “a significant management problem for municipal sewerage systems”, Gleeson said there was not enough evidence to show that the Cottonelle wipes had specifically caused harm.

“The evidence showed that sewerage blockages have many causes, not limited to the disposal of ‘non-flushable’ items into toilets,” Gleeson said.

ACCC Chair Rod Sims said the organisation will argue the court was wrong to dismiss this aspect of the case.

“We will argue on appeal that Kimberly-Clark’s flushable claims should have been found to be misleading because there was evidence of the risk of harm these wipes posed to the sewerage system, and that the trial judge was wrong to require evidence that these particular wipes had caused actual harm,” Sims said.

“The ACCC will also argue that the court made an error by rejecting the ACCC’s case that Kimberly-Clark had claimed the Kleenex Wipes would break up quickly like toilet paper when flushed.”

Sydney Water spokesperson Peter Hadfield said the utility welcomed the news of the appeal.

He said Sydney Water spends more than $8 million removing about 500 kg of wipes from its network every year.

“Blockages caused by bathroom products have been a big issue for water utilities and their customers across Australia,” Hadfield said.

“It’s costing the community millions of dollars every year to deal with the issues that these products cause in the wastewater system and the resulting environmental impacts these products can create.” 

Sims said this is partly what drove the ACCC to appeal the decision.

“The ACCC is aware of problems continuing to be reported by Australian water authorities as a result of non-suitable products, such as wet wipes, being flushed down the toilet and contributing to blockages and other operational issues,” Sims said.

In a statement, Kimberly-Clark Australia and New Zealand Managing Director Doug Cunningham said the company was disappointed by the ACCC’s decision.

"Our Kleenex Flushable Wipes are safe to be flushed and we will continue to rigorously defend that position,” Cunningham said.

A hearing for the appeal before the Full Federal Court will be set at a later date.