ACCC appeals Federal Court’s decision on Kleenex ‘flushable’ wipes

It’s the gross image of “fatbergs” from our sewerage system that sparked a court case. But the consumer watchdog didn’t agree with the ruling.

The consumer watchdog is appealing the Federal Court’s decision to let the company behind Kleenex go unpunished against allegations it misled customers by claiming its moist towelettes are flushable.

Consumer advocates blamed Kimberly-Clark Australia for the disgusting “fatbergs” clogging sewerage systems across Australia, saying the wet wipes don’t break down when flushed.

The Australian Competition and Consumer Commission alleged the company made false or misleading representations by labelling the products as flushable, leading consumers to believe they had similar characteristics to toilet paper.

RELATED: Kleenex company Kimberly-Clark avoids fine over ‘flushable wipes’

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But in the Federal Court last month, Justice Jacqueline Gleeson said she was not persuaded the ACCC’s evidence was sufficient to support a conclusion the wipes were unsuitable for flushing.

“If it is sufficient, I do not draw that conclusion because the instances of blockages identified by the complaints are so few in the context of the total sales of the wipes that they are properly characterised as insignificant,” she said.

On Monday, the ACCC said it would appeal the dismissal, claiming the company misled consumers about the suitability of its wipes to be flushed.

“We are appealing this decision because we believe the court made an error in deciding whether it was misleading for Kimberly-Clark to represent that the Kleenex wipes were suitable to be flushed,” the watchdog chair Rod Simms said.

“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.”

Clearing the drains is both gross and expensive.

Advocates implore consumers to not flush wet wipes

At the time of the decision, consumer advocate group Choice was confident Kimberly-Clark would be slapped with a hefty fine after the maker of White King was fined $700,000 for similar accusations in April 2018.

The Federal Court ordered the penalties against cleaning product manufacturer Pental in a court action initiated by the ACCC following a referral by consumer group Choice in 2016.

In addition to marketing the wipes between 2011 and 2016 as “flushable”, Pental’s packaging and promotional materials included statements such as “Simply wipe over the hard surface of the toilet and just flush away”, and “White King toilet wipes are made from a specially designed material, which will disintegrate in the sewage system when flushed, just like toilet paper”.

The ⁦@acccgovau⁩ took flushable wipes to court for misleading people with their ‘flushability’ claims after ⁦@choiceaustralia⁩ tests in 2015 - looking forward to court judgment today pic.twitter.com/XObX4xw7iN

— Sarah Agar (@SarahLouiseAgar) June 27, 2019

Choice condemned the dismissal in the Federal Court, with its head of campaigns and policy Sarah Agar saying she was “really disappointed” and urged Australians to not flush the wipes.

“This is terrible news for people who care about the environment and our waterways,” she said.

“Choice is warning Australians not to flush wipes following this disappointing court decision that means flushable wipe companies won’t be held to account for clogged sewers, damaged waterways and terrible plumbing bills for Australians.

“We applaud the ACCC for taking on tough cases like this, and a strong consumer regulator will have wins and losses along the way.”

Yep, that’s disgusting.

Mr Simms said the court made an error by rejecting the consumer watchdog’s case that Kimberly-Clark had claimed the Kleenex Wipes would break up quickly like toilet paper when flushed.

“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,” he said.

The Water Services Association of Australia (WSAA) said it welcomed the confirmation from the consumer watchdog that it would appeal the court’s findings.

“WSAA continues to call for clearer labelling for consumers and is leading the development of an Australian standard for flushable products,” executive director Adam Lovell said.

“The standard will be released for public comment in the next couple of months and we expect it to be finalised by the end of 2019.

“United Kingdom water utilities say it costs £100 million ($AU180 million) annually to clear blockages contributed to mainly by wet wipes. Utilities in the US report similar experiences.

“Here in Australia and New Zealand the issue is costing the urban water industry millions of dollars each year.”

In a statement provided to news.com.au, Kimberly-Clark said it was disappointed in the ACCC’s appeal and again rejected the claims levelled against it.

“At Kimberly-Clark we take the truthfulness and accuracy of our claims and marketing seriously,” the company’s regional managing director Doug Cunningham said.

“Our Kleenex flushable wipes are safe to be flushed and we will continue to rigorously defend that position.

“We have always been committed to ensuring that our flushable wipe products meet or

exceed international industry standards for flushability.

“We also remain committed to continuing to educate consumers on what can and cannot be flushed.”

The products at the centre of the allegations have been discontinued and replaced with a different range of flushable wipes.

A hearing for the appeal will be set at a later date.

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