An appeal to the Full Federal Court by the ACCC has been dismissed and Kimberly-Clark Australia Pty Ltd has been found to have not made false or misleading claims regarding their Kleenex Cottonelle toilet wipes and their “flushability”. It was alleged by the ACCC that labelling the wipes as “flushable” was misleading and deceptive on the basis that consumers may infer that this description meant the wipes would have similar characteristics to toilet paper, and would break down in a similar manner.

Evidence of the ACCC came from various Sydney water authorities who are faced with significant problems when non-suitable products are flushed, resulting in blockages in household and municipal sewerage systems. Last year, the trial judge dismissed the ACCC’s case and ruled that to prove their case, they would need to prove the wipes had caused or contributed to real harm, in particular instances.

Appeal of the ACCC

The ACCC lodged an appeal arguing that because the products posed a “real risk of harm” to sewerage systems, they were not suitable for flushing. This argument was rejected, and the Full Court upheld the original decision highlighting that the ACCC had originally argued that because the products posed “actual harm”, they therefore could not pursue a fresh argument of a “real risk of harm” during the appeal process.

As a means of offering a potential future solution to the water authorities’ concerns, within the judgement, the FFC recognised the ACCC’s concerns and identified one response to try and overcome the potential for blockages being the introduction of legislation or standards governing the characteristics of what can and cannot be sold or advertised as “flushable”.

The Federal Court’s judgement was handed down on 15 June 2020 and can be viewed here.

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This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions. For more information or specific advice on your circumstances please contact tracey@robinsonnielsen.com.au.