ACCC v Kimberly-Clark Australia Pty Ltd  FCA 992
 “Mr Drinkwater volunteered:
We – we chose three hours because it was a compromise between what could be achieved introducing these wet wipes and what the water and the sewerage industry could actually accept.”
 This observation makes plain there is no bright line which separates the flushable from the unflushable (assuming that the product is designed and marketed by the manufacturer to be flushed).”
The ACCC claimed that Kimberly-Clark Australia Pty Ltd (KCA) had contravened the Australian Consumer Law by marketing its Kleenex Cottonelle Flushable Cleansing Cloths (KCFC wipes) as ‘flushable’.
The various breaches of the Australian Consumer Law alleged relied on the claim that marketing KCFC wipes as flushable was misleading or deceptive, or likely to mislead or deceive.
The ACCC presented 28 complaints from consumers about sewerage blockages following the use of KCFC wipes. Additionally, a number of opinions by plumbers were provided that ‘wipes’ or ‘flushable wipes’ had caused or contributed to the blockages.
A large amount of evidence was also tendered by the ACCC demonstrating that KCFC wipes broke down slower in water than toilet paper and were more likely to snag on imperfects such as tree roots in sewerage pipes and clump.
Arguments raised by the ACCC
The arguments relied upon by the ACCC can be broadly summarised as follows:
Marketing KCFC wipes as flushable was misleading or deceptive as:
- KCFC wipes do not share the characteristics of toilet paper that make it flushable, such as the rate at which toilet paper breaks up in water.
- KCFC wipes cause or contribute to blockages in the sewerage system.
- Meeting the International Nonwovens and Disposables Association and European Disposables and Nonwovens Association GD3 guidelines (INDA/EDANA GD3 Guidelines) is not sufficient to establish that the wipes are flushable.
No breach of the Australian Consumer Law was found with respect to the claim of flushability.
1. KCFC wipes do not share the characteristics of toilet paper that make it flushable, such as the rate at which toilet paper breaks up in water.
While Gleeson J accepted that KCFC wipes do not disintegrate in water at the same speed as toilet paper, her Honour did not accept that in order to be flushable KCFC wipes would have to be equal to toilet paper in terms of the qualities that make it suitable for flushing.
2. KCFC wipes cause or contribute to blockages in the sewerage system.
As a result of the evidence tendered by the ACCC, Gleeson J concluded that “it is reasonable to infer on the balance of probabilities that the KCFC wipes contributed to blockages in the sewerage system in an unknown number of instances, and to maintenance costs” . However, this did not lead to a conclusion that marketing the wipes as flushable was misleading or deceptive, or likely to mislead or deceive. The fact that these wipes were more likely than not to have caused harm could not be equated with proof that they had actually caused harm in a particular instance.
Furthermore, Gleeson J found that items considered flushable, such as toilet paper, are also known to contribute to drain blockages. As a result, “it is not self-evident that a wipe designed to be flushed down the toilet is not suitable for flushing because it has caused or contributed to a sewerage blockage on one or more occasions” .
3. Meeting the INDA/EDANA GD3 Guidelines is not sufficient to establish that the wipes are flushable.
KCA relied on the fact that its wipes had met (and in many instances exceeded) the requirements of the GD3 Guidelines. Gleeson J found that the “INDA/EDANA GD3 Guidelines represent a conscientious and scientific effort to establish an appropriate framework for assessing flushability” . As such, in order to demonstrate that this standard was not an appropriate basis for marketing the wipes as flushable, the ACCC was required to present substantial evidence of failures in the sewerage system caused by KCFC wipes. The ACCC tendered evidence that KCFC wipes are more likely to cause blockages in the sewerage system than toilet paper, and that they present a material risk of clumping in a sewerage system. Gleeson J noted that demonstrating that a product presents a risk is not sufficient to demonstrate that this risk has manifested as harm. Without clear, documented examples of KCFC wipes causing blockages, the conclusion that meeting the GD3 standard was not a sufficient basis for making the claim of flushability could not be established.
The ACCC claimed marketing the wipes as ‘made in Australia’ was false or misleading. KCA admitted that this representation was false or misleading, leaving this allegation not in issue.
Three main messages may be drawn out of this judgment.
- Evidence that is ‘generic’ or non-specific will be given little weight by a court. In this case, ample evidence was given of disposable wipes causing blockages in sewerage systems, but not a single instance in which KCFC wipes caused a blockage. As such, the evidence presented was insufficient to show that KCFC wipes were incompatible with sewerage systems (by reason of them having a tendency to cause blockages).
- Care must be taken to ensure the soundness of legal conclusions reached through deductive reasoning. It was argued by the ACCC that sewerage systems are only compatible with toilet paper and human waste. Evidence was then tendered showing that KCFC wipes are less compatible with sewerage systems than toilet paper. However, the court rejected the premise that wipes must match the qualities of toilet paper in order to be compatible with a sewerage system.
- The ‘risk of an occurrence is a different thing from the cause of an occurrence’. That is, in order to prove that a product is unsuitable for a particular use requires evidence of instances in which it has failed, rather than evidence that it would likely fail.
As a whole, this judgment serves to strengthen the position of manufacturers and distributors who might be accused of selling a product that causes damage or loss of a specified kind. In particular, it calls for such a claim to be substantiated with specific, real-world examples of the supposed harm, and casts doubt on many types of evidence that may be easier to collect.
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