ACCC Alleges Flushable Wipe Makers Are Misleading Consumers

Tuesday 13 December 2016 @ 9.31 a.m. | Trade & Commerce

The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court against Kimberly-Clark Australia Pty Ltd (Kimberly-Clark) and separately against Pental Limited and Pental Products Pty Ltd (together, Pental) alleging that they each made false or misleading representations in relation to “flushable” wipes they marketed and supplied in Australia.

These proceedings follow a complaint made to the ACCC by the consumer advocate group, Choice.

Background to the Court Action

The ACCC alleges that, by labelling these products as “flushable”, consumers were led to believe that the products had similar characteristics to toilet paper, would break up or disintegrate in a timeframe and manner similar to toilet paper, and were suitable to be flushed down the toilet, when this was not the case.

The ACCC alleges that, between May 2013 and May 2016, Kimberly-Clark variously advertised its personal hygiene wipes, Kleenex Cottonelle Flushable Cleansing Cloths, as “flushable”, “completely flushable”, “able to be flushed in the toilet”, and able to “break down in sewerage system or septic tank”.

Kimberly-Clark also stated on its FAQ website for flushable wipes for Kids, that they would “break up in the sewerage or septic system like toilet paper”. The ACCC also alleged that Kimberly-Clark advertised that these products were made in Australia when that was not the case.

Reaction from the ACCC

Commenting on the recent Court action in a ACCC Media Release, the ACCC Chairman Rod Sims said:

“These products did not, for example, disintegrate like toilet paper when flushed. Australian water authorities face significant problems when non-suitable products are flushed down the toilet as they contribute to blockages in household and municipal sewerage systems. Australian water authorities face significant problems when non-suitable products are flushed down the toilet as they contribute to blockages to household and municipal sewerage systems."

It is alleged that, by making these representations, Kimberly-Clark and Pental engaged in misleading and deceptive conduct and made false or misleading representations, in contravention of the Australian Consumer Law (ACL) - contained in Sch 2 to the Competition and Consumer Act 2010 (Cth).

Impact on Water Utilities

Hygiene wipes have been an issue for water management facilities, with Sydney Water saying clean-up efforts cost around $8 million annually. In March 2016, Sydney Water was "inundated" with complaints from households who had paid $300 to $16,000 for plumbers to clear drains clogged with balls of intransigent wipes.

In October 2015, consumer advocacy group Choice's tests found flushable wipes did not disintegrate like toilet paper, with the wipes holding together for 21 hours, while toilet paper dissolved in a few minutes.

Choice head of media, Tom Godfrey said in a statement:

"We used the results of our test to make a complaint to the ACCC back in 2015, because we felt Kleenex was breaching the Australian Consumer Law by misleading customers about the nature of its products."

Statement from the manufacturers

A Kimberly-Clark spokesperson said in a statement that the company stands by claims it has made about the flushability of their Kleenex cottonelle cloths, which were supplied up until May 2016:

"Our claims that these products are flushable are accurate and the proceedings will be defended on that basis. These products and the current Kleenex cottonelle flushable wipes meet or exceed the requirements set out in the INDA/EDANA flushability guidelines, which are the only widely accepted guidelines for assessing flushability."

In a statement, Pental said its product packaging was inherited from a major international company, leading it to believe that the labelling of the White King Bathroom Wipes conformed with all legal requirements:

"In September 2014, Pental undertook its own review of the ... packaging and removed the claims relating to disintegration like toilet paper. This was well prior to any ACCC investigation. Pental is therefore disappointed that the ACCC has decided to issue proceedings, despite Pental's proactive approach in removing the claims of concern to the ACCC and the fact that other larger multinational companies continue to sell similar products labelled as 'flushable'."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Flushable wipe makers misleading consumers alleges ACCC - abc.net.au

ACCC takes legal action over claims cleaning wipes 'flushable' - smh.com.au

ACCC takes court action on “flushable” wipes - ACCC Media Release

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