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Court finds Kleenex ‘flushable’ wipes not misleading

A case alleging Kimberly-Clark misled customers by labelling its Kleenex Cottonelle wipes as 'flushable' has been dismissed by the Federal Court.

The Australian Competition and Consumer Commission (ACCC) took Kimberly-Clark Australia to court in December 2016, arguing the use of 'flushable' led consumers to believe the products would break-up or disintegrate in a similar manner to toilet paper.

But 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.

“Accordingly, it is not self-evident that a wipe designed to be flushed down the toilet is not suitable for flushing because it has caused or contributed to a sewerage blockage on one or more occasions.”

The ACCC pointed to 28 customer complaints Kimberly-Clark received over a three-year period as evidence of the damage done by the Cottonelle wipes, but Gleeson said there was no evidence from consumers or plumbers to verify these.  

Gleeson also found it was reasonable for Kimberly-Clark to make the 'flushable' claim based on guidelines published by the International Nonwovens and Disposables Association and the European Disposables and Nonwovens Association.

The ACCC argued these guidelines were not independent, as they were developed by the manufacturers of 'flushable' labelled products, without substantial input from wastewater authorities. 

ACCC Chair Rod Sims said the consumer watchdog had brought the case because it was concerned consumers were being misled about the 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,” Sims said.

Some Australian water utilities spend millions of dollars a year removing ‘fatbergs’ – an amalgam of wet wipes, sewage and cooking fat that collects in pipes – from their networks.

‘Keep wipes out of pipes’ has long been a catchcry of Sydney Water, and spokesperson Peter Hadfield said the utility was disappointed by the Federal Court’s decision.

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

“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.”

Hadfield said it was an expensive exercise to remove blockages or repair damage done to private sewer pipes by flushing wipes, with one Sydney Water customer reporting a $16,000 plumbing bill as a result.

“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 product down the toilet,” he said.

While the ACCC lost its case against Kimberly-Clark, in April 2018 the Federal Court ordered Pental Limited and Pental Products to pay $700,000 for making false and misleading claims about their White King 'flushable' toilet and bathroom cleaning wipes.

Pental had marketed the wipes as being “made from a specially designed material, which will disintegrate in the sewage system when flushed, just like toilet paper”.  

The Water Services Association of Australia is currently working to develop a national standard that defines the criteria for material that can be flushed down the toilet, along with appropriate labelling requirements.

This could involve labelling wipes and personal hygiene products with 'do not flush'. 

The standard is expected to be available for public consultation in August, with publication by the end of 2019.

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