Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Kimberly-Clark Australia Pty Ltd (KCA) in relation to the marketing and promotion of their flushable wipes. The ACCC alleged that KCA engaged in misleading and deceptive conduct by representing that the wipes were flushable and would not cause harm to sewerage systems. KCA denied the allegations and the case was heard by the Federal Court of Australia. The legal issues before the Court were whether KCA's representations regarding the flushability of their wipes were misleading or deceptive, and if so, whether they contravened certain sections of the Australian Consumer Law. The Court found that KCA's representations were not misleading or deceptive because the wipes were indeed flushable and met the relevant standards. The Court also found that there was no evidence to suggest that the wipes caused harm to sewerage systems. The ACCC's case failed, except in relation to a representation that the wipes were "Made in Australia", which the parties agreed was made and was false or misleading. The Court dismissed the application with costs.
The Court's reasoning was based on the evidence presented by both parties. The ACCC relied on a demonstration by Sydney Water that showed the different behaviour of toilet paper and KCA's wipes once submerged and agitated in water. However, none of the ACCC's expert witnesses endorsed the demonstration as an appropriate test for assessing flushability. The ACCC also relied on collection studies, which involved collecting waste from parts of the sewerage system to study their contents. However, the ACCC ultimately did not rely on the collection studies, and the Court accepted that collection studies may be unable to detect a problem in fact caused by flushable wipes. The Court found that KCA's representations were not misleading or deceptive because the wipes were indeed flushable and met the relevant standards. The Court also found that there was no evidence to suggest that the wipes caused harm to sewerage systems. The Court dismissed the application with costs, except in relation to a representation that the wipes were "Made in Australia", which the parties agreed was made and was false or misleading. The parties were directed to approach the Associate to Gleeson J to fix a date for a case management hearing in connection with the applicant’s claims for relief concerning the “Made in Australia” representations.