Court rules controversial Kleenex wipes “flushable”

16-06-2020
wastewater treatment

Sydney Water and consumer advocates have warned against flushing wet wipes down the toilet, after an appeal court ruled the consumer watchdog had not proven it was misleading for Kleenex products to be marketed as "flushable".

In a decision on Monday, the Full Court of the Federal Court upheld a decision that Kleenex had not engaged in misleading or deceptive conduct by claiming four types of Cottonelle "flushable cleansing cloths" were fit for flushing.

The products have been discontinued, but Kleenex now sells other "flushable" wipes.

Kleenex, owned by the US-headquartered Kimberly-Clark, marketed the "lightly moistened toilet tissue wipes" as flushable and capable of being "used with ... regular toilet paper".

The Australian Competition and Consumer Commission pursued Kimberly-Clark in the Federal Court, alleging the "flushable" claim was misleading or deceptive on the basis the products contributed to blockages in household and municipal sewerage systems.

But the Federal Court ruled in June last year that the consumer watchdog had failed to prove the Cottonelle product – rather than wipes generally, and particularly those not marketed as flushable – caused actual harm to sewerage systems.

Justice Jacqueline Gleeson said at the time that the wipes had "inferior properties of breakdown and dispersion than toilet paper when flushed", but the ACCC had not provided sufficient evidence that the wipes posed a greater risk of blockages than toilet paper.

The ACCC lodged an appeal, arguing that the court should have found the products were not suitable for flushing because they posed a "real risk of harm" to sewerage systems.

The Full Federal Court – Justices Nye Perram, Bernard Murphy and Thomas Thawley – rejected this argument and upheld the original decision.

The court said the consumer watchdog had argued in the original case that the products caused "actual harm" to sewerage systems, rather than posing a risk, and it could not change course during the appeal.

The court said tests on "fatbergs" – congealed masses blocking drains, which may include wipes, toilet paper, fats, grease, hair, and other waste – did not reveal the specific wipes in this lawsuit were a particular culprit.

"The composition tests performed on fatbergs tended to suggest that the main contributor was material like paper towels, fat and grease, and wipes which were not designed to be or marketed as flushable, such as baby wipes and cosmetic wipes," the court said.

The court also noted that much of the evidence the ACCC produced "was directed to problems caused by wipes generally", not the wipes in this case.

Sydney Water's head of customer hub, Darren Cash, said the decision was "disappointing" and "the fact is that wet wipes ... wreak havoc in our pipes".

"Even though wet wipes might state that they are flushable on their packaging, the reality is that they don’t break down and cause blockages in Sydney Water’s wastewater pipes, and our customers’ plumbing as a result."

He said "only the three Ps" – human waste and toilet paper – could be flushed, and other products should be binned.

Julia Steward, consumer law expert at advocacy group CHOICE, said the ACCC was "right to fight this" and Kimberly-Clark had "won on legal technicalities".

"These wipes still aren't flushable. Do not flush these wipes," Ms Steward said. "In the testing we conducted in 2015, there was no sign of these products truly breaking up."

In a statement, Kimberly-Clark Australia said the court's decision was "testament to the quality and safety of this product".

"The wipes were designed to be, and are, suitable to be flushed," the company said. "We have always been confident in the accuracy of our claims."