BY ALEC SMART
In a Federal Court battle at the end of June in Sydney, the Australian Competition and Consumer Commission (ACCC) lost a significant case against toiletries giant Kimberly-Clark, over ‘flushable’ Kleenex brand wet toilet wipes, which the ACCC claimed were not suitable for sewage systems.
The ACCC alleged that Kimberly-Clark breached Australian consumer law by marketing their wet wipes as flushable, although the wipes did not break down like regular toilet paper and clogged up outflow pipes and sewage processing plants.
But Justice Jacqueline Gleeson, presiding, declared she was not convinced the wet wipes were unsuitable for flushing down the toilet. She dismissed the ACCC’s case and ruled that Kimberly-Clark’s claims of ‘flushability’ did not breach Consumer Law, and were therefore neither false nor misleading.
The ACCC were instructed to pay Court costs, although it was found that Kimberly-Clark’s assertion that the wipes were ‘Made in Australia’ was misleading, as they were made in Germany, South Korea and the UK.
The ACCC chairman, Rod Sims, said the commission planned to seek legal advice on whether it could lodge an appeal against the court’s “extremely disappointing” decision. Sims argued: “Are they flushable? Do they break down like toilet paper? They don’t.”
Choice, the non-profit, non-partisan advocacy group that researches and campaigns on behalf of Australian consumers, condemned the Federal Court decision. Head of Campaigns and Policy Sarah Agar said, “This is terrible news for people who care about the environment and our waterways. Calling something ‘flushable’ when it doesn’t actually break down and can cause costly blockages isn’t good enough.
“Choice is warning Australians not to flush wipes following this disappointing court decision that means flushable wipe companies won’t be held to account for clogged sewers, damaged waterways and terrible plumbing bills for Australians.
“We applaud the ACCC for taking on tough cases like this … We hope to see them keep testing the law in cases like this where there’s clear detriment to the community.”
Kimberly-Clark is an American multinational corporation that specialises in personal care products. They own multiple brands but their more well-known products in Australia include Huggies disposable nappies, Kleenex tissue paper, Kotex feminine hygiene products and Scott paper towels.
Founded in 1872, Kimberly, Clark and Co. initially operated paper mills, but in 1914 went on to develop cellu-cotton, an absorbent fibrous material made from processed wood pulp, for bandages in World War 1 and later developed them for use as sanitary towels.
In the ensuing years they branched out into personal hygiene products, although paper remains at the core of their business. In 1995 they acquired the Scott Paper Company but in 2005, Greenpeace and other environmental organisations launched their grassroots ‘Kleercut’ campaign against Kimberly-Clark because the company, the world’s largest manufacturer of tissue products, were linked to the logging of ancient boreal forests.
A 2007 Greenpeace statement declared, “Companies like West Fraser bring in the machines to raze everything so that they can sell ancient ecosystems as pulp to Kimberly-Clark. This is the pulp we all flush down the toilet as Cottonelle enhanced with Aloe, Kleenex Anti-Viral or Scott Extra Soft.
When Kimberly-Clark declares it is too hard to use recycled paper in Kleenex, they are really saying clearcutting is too cheap and too easy.”
Greenpeace charged that Kimberly-Clark was using over 3 million tons of pulp a year from old-growth forests to produce tissue paper products, such as the Kleenex brand. Greenpeace led a large grassroots student activist campaign targeting Kimberly-Clark for sourcing 22% of its paper pulp from Canadian boreal forests containing 200-year-old trees.
Then, on August 5, 2009, Kimberly-Clark and Greenpeace held a joint press conference, with the company announcing it would modify its behaviour and source 40% of its paper fibre from recycled content or other sustainable sources. Greenpeace then ended its Kleercut campaign.
In October 2015, Choice announced Kimberly-Clark was a recipient of one of their annual Shonky Awards for their flushable wet wipes. Appreciators of Australian slang are, of course, aware that ‘shonky’ means “unreliable, unsound, dishonest, poor or of dubious quality; shoddy”
Since 2006, Choice have dished out over 80 Shonky Awards to companies they declare have “flouted consumer protection laws, sold products that were faulty by design, and shown blatant disregard for consumer safety.”
Choice awarded it to Kimberly Clark for the company’s claim that the woven Kleenex Cottonelle Cleansing Cloths disintegrated in sewage systems “just like toilet paper”.
“Unfortunately, this was not the case when we tested the product,” said Choice. “We ran the wipes in an agitator alongside toilet paper and after 20 hours those flushable wipes were intact – unlike the toilet paper which totally disintegrated in no time at all.”
Choice continued: “Our in-house test backed up what consumers and wastewater facilities around Australia have been telling us: flushable wipes don’t break up and are likely to block pipes. In fact, the problem has been estimated to cost the Australian wastewater industry $15 million a year (and growing) to clear blockages caused by ‘flushable’ wipes.
“A whopping 75% of pipe blockages are thought to be caused by ‘fatbergs’ – an industry term for the solid masses of congealed grease, fat and products like wet wipes that form in the sewer system.”
After the announcement, Choice then launched a case with the ACCC to challenge three companies selling so-called ‘flushable’ wipes, ALDI, Pental and Kimberly-Clark.
Ironically, in December 2016 when the ACCC announced they would pursue Kimberley-Clark in the Federal Court, a former American employee of the corporation revealed to News.com that hundreds of staff at one of Kimberly-Clark’s offices in the USA were banned from using flushable wet wipes in 2014. The reason: they “caused major issues with the sewer system because they did not disintegrate”.
“Their statement was that the building had old plumbing and could not handle 300 people using flushable wipes,” the ex-employee told news.com.au.
On 12 December 2016, the ACCC instituted proceedings in the Federal Court against Kimberly-Clark Australia and separately against Pental, alleging that they each made false or misleading representations in relation to ‘flushable’ wipes they marketed and supplied in Australia.
A statement on the ACCC website said: “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.
“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.”
In July 2017, ALDI responded to the ACCC’s concerns by withdrawing their flushable wet wipes from sale, and recalling their Green Action Bathroom Cleaning Wipes before they reached their stores in order to modify the label from ‘flushable’ to ‘do not flush’.
The ACCC announced no further action would be taken against ALDI. The case against Pental, however, went ahead, to the detriment of the latter.
On 12 April 2018, the Federal Court ordered Pental Limited and Pental Products Pty Ltd to pay penalties totalling $700,000, for making false and misleading representations about its ‘flushable’ toilet and bathroom cleaning wipes, White King Power Clean Flushable Toilet Wipes, later renamed the White King Flushable Bathroom Power Wipes.
ACCC announced: “The ACCC took action against Pental due to concerns that consumers were being misled into believing that the wipes were suitable to be flushed. These White King wipes can’t be flushed down the toilet, and Australian wastewater authorities face significant problems if they are because they can cause blockages in household and municipal sewerage systems.”
The Federal Court hearing in June this year against Kimberly-Clark was expected to lead to a similar outcome as Pental last year, with legal firm Shine Lawyers predicting a class action of householders suing Kimberly-Clark to reimburse plumbing bills to clear blocked drains.
However, it turned unexpectedly against the ACCC.
In the wake of the Federal Court ruling, Kimbery-Clark’s Australia-New Zealand managing director, Doug Cunningham, said. “We know that our flushable wipes are suitable to be flushed and this has now been confirmed by the Federal Court of Australia. “We have always been committed to ensuring that our flushable wipes products meet or exceed international guidelines for flushability.
In a factsheet on their Kleenex website regarding their wet wipes’ flushability, Kimberly-Clark state: “Our flushable wipes have undergone a series of tests to determine their flushability. They pass all seven of the industry tests which means that they are in full compliance with INDA and EDANA flushability guidelines, the most widely used industry guidelines on flushability…
“The INDA and EDANA guidelines require that wipes: Clear and not block in the toilet bowl and drain line; Disintegrate when agitated; Pass through household pumps; Settle in sewerage systems; Break down in aerobic conditions; Break down in anaerobic conditions and Flow through municipal sewer pumps without pump overload.
Our wipes are designed to break down over time when passing through plumbing systems…”
Sarah Agar, Choice’s head of Campaigns and Policy, pours scorn on these claims. “Kimberly-Clark claimed that its ‘flushable’ wipes meet guidelines for flushability, but these guidelines were written by industry, for industry. The current industry guidelines are obviously not a good standard to follow. Instead of listening to a self-interested industry, we should listen to the people being stuck with thousands of dollars in plumbing bills and the experts at water services who are faced with the multi-million-dollar clean-up cost every year…
This self-regulation is useless, and shouldn’t let companies get away with misleading people.”
So, who are INDA and EDANA?
INDA originally stood for International Nonwovens and Disposables Association. On their website they state: “As the global nonwovens industry grew, it became clear that one association could not adequately serve the needs of the world, thus EDANA (The European Disposables and Nonwovens Association) and several Asian Nonwovens Associations were formed. The Association’s name, “INDA”, was officially changed to “The Association of the Nonwoven Fabrics Industry” in 1976. However, after years of use the word “INDA” remains as an identifiable acronym for the official title of the Association.”
Regarding their purpose, the INDA website states: “INDA brings companies of the nonwoven fabrics industry together to address and resolve the issues affecting their business and serves as the voice sending the message as directed by its members.”
So, to summarise, INDA and EDANA are the two global trade associations representing wet wipes manufacturers that also oversee the industry’s standard for assessing the flushability of wet wipes.
Water utilities have been campaigning to reduce the use of these wipes, which they argue cause massive “fatbergs”, costing Australian utilities about $15 million a year.
Peter Hadfield, spokesperson for Sydney Water, said that he hoped the June 2019 ruling against ACCC wouldn’t encourage people to use wet wipes in their lavatories.
He reiterated that “the only things that should be flushed down the toilet were the “three Ps” – poo, pee and paper.”
In a press release sent to City Hub, Hadfield said, “we are obviously disappointed with the decision, but we must abide by the Federal Court ruling.
“Sydney Water removes over 500kg of wipes from our network every year at a cost of over $8 million dollars. We commenced our ‘Keep Wipes out of Pipes’ campaign in 2015 and we have seen positive behavioural change in our customers. Hopefully the decision by the Federal Court won’t set back this behavioural change.
“Customers across Australia have been hit with expensive plumbing bills to remove blockages or to repair damage to their private sewer pipes caused by flushing wet wipes…
“Despite the Federal Court decision, in order to save the environment and to prevent expensive future plumbing bills for Australian households, it is up to all consumers to stop flushing wet wipes or any other bathroom or personal hygiene product down the toilet.”
Toilet paper breaks down
The Choice website declares: “In the testing we conducted in 2015, there was no sign of these products truly breaking up. The so-called ‘flushable’ wipes held together in our tests for hours while ordinary toilet paper broke down and dissolved in a few minutes.”
“Our test clearly shows that … Kleenex’s CleanRipple Flushable Wipes should not be flushed down the toilet, regardless of watery front of pack claims,” said Tom Godfrey, Choice’s Head of Media.
“Consumers rightly expect that a product labelled ‘flushable’ won’t damage their pipes or our waterways, but we believe they pose a blockage threat, particularly in the first several metres of pipe on a property, so the message is clear – keep these wipes out of your pipes.”
Water Services Association of Australia (WSAA) declared: “Based on our results, we conclude that while the Kleenex CleanRipple Flushable Wipes are likely to substantially break apart after several hours in sewerage pipes, they break apart slowly enough that the pieces retain enough tensile strength and size to reasonably pose some threat of blockage, particularly in the early stages from flushing the toilet to exiting the pipes on a consumer’s own property.
“It may be reasonable to say that the Kleenex CleanRipple Flushable Wipes are safer to flush than the previous version (Kleenex Cottonelle Flushable Cleansing Cloths), but if toilet paper is the standard of flushability a flushable wipe should conform to, Kleenex CleanRipple Flushable Wipes cannot be considered entirely safe to flush.”
Choice’s Sarah Agar asserts: “At the core of this case is whether it’s reasonable to advertise these wipes as ‘flushable’, but evidence is hard to collect when it comes to these products.
“While we’ve all seen the photos of disgusting fatbergs being pulled out of sewers around the world, it’s another thing to prove a specific company’s product is to blame – which is the evidence that the Federal Court wanted. We think if the wipes don’t break down like toilet paper, they shouldn’t be labelled ‘flushable’
Unfortunately, this isn’t the way the Federal Court made its decision on this case.”
WSAA is currently working to develop a national standard on wet wipes to define whether they could meet a certain standard of biodegradability to be labelled ‘flushable’. It would likely involve a labelling code. The Australian standard is expected to be available for public consultation in August 2019, and certified by the end of the year.
Adam Lovell, Executive Director, said “The development of an Australian Standard will provide manufacturers with clear specifications to design products that are compatible with the sewerage network. The international water industry has collectively committed to a position statement that all wipes and personal hygiene products should be clearly marked as “Do Not Flush” and be disposed of in the bin or trashcan. This position statement is supported by over 300 utilities and non-government organisations from 23 countries.”
Despite dismissing the case against Kimberly-Clark, Justice Gleeson also concluded that: “There was ample evidence that “wipe” products generally are a significant management problem for municipal sewerage systems, impairing the function of infrastructure and increasing maintenance costs.”