Woolies beat ACCC appeal over ‘compostable’ disposable cutlery

After Woolworths won a court battle over “eco cutlery”, the consumer watchdog went back for another go but failed again.

Woolworths has stared down a consumer watchdog appeal over disposable cutlery it branded as “compostable” and “biodegradable”. Picture: NCA NewsWire/Bianca De Marchi

Woolworths has stared down a consumer watchdog appeal over disposable cutlery it branded as “compostable” and “biodegradable”.

The supermarket giant stocked disposable cutlery, plates and bowls under its green “Select Eco” brand between 2014 and 2017.

The Australian Competition and Consumer Commission took the store to court, arguing the average Aussie shopper would believe the products would biodegrade and compost when placed in the household compost or regular landfill, and that this was misleading.

But Justice Debra Mortimer knocked back the watchdog in 2019, finding it was true that the products could biodegrade in landfill or be turned into compost.

The Australian Competition and Consumer Commission took Woolworths to court twice and lost both times. Image: Federal Court of Australia.

The ACCC appealed the decision on the basis the packaging effectively made a promise about what would happen to the products in the future.

On Tuesday, it lost again when Federal Court Justices Lindsay Foster, Michael Wigney and Darren Jackson ruled in favour of Woolworths.

Justice Mortimer found the products could in fact turn into “useful compost” in a matter of months rather than years, with some variability.

But she agreed with the ACCC that at the time Woolworths sold the product in the packaging, it didn’t have any grounds for knowing if it was true.

The ACCC argued this meant the conduct was misleading even if it was the case the products were compostable and biodegradable.

The ACCC lost again on Tuesday when three Federal Court Justices ruled in favour of Woolworths. Image: Federal Court of Australia.

But the appeal judges disagreed, agreeing with Woolworths that representations are “either true or false” irrespective of state of mind.

The judges also found Justice Mortimer was right to conclude the only representations made about the products were that they were biodegradable and compostable.

“The representations here did not speak to the future at all,” the judges wrote.

Woolworths did not suggest any time frame in which the products would biodegrade or compost, they said.

“In particular, Woolworths did not represent that the products would biodegrade or compost within a reasonable time in the conditions posited by the ACCC.”

“In any event, even if Woolworths did make representations to that effect, they were true.”

The appeal was dismissed with costs.