The Federal Court has ordered Kimberly-Clark Australia Pty Ltd to pay a penalty of $200,000 for misleading consumers by falsely representing on its website that its Kleenex Cottonelle ‘flushable cleansing cloths’ were made in Australia, when they were actually made in Germany, South Korea or the UK.
The false representations were made on the product website between 28 October 2015 and 24 February 2016, while the product packaging contained the correct information about where the wipes were made.
In June 2019, the Federal Court had found that Kimberly-Clark made false or misleading representations that the products were Australian made after Kimberly-Clark admitted this during the court case.
In the same case, the Court dismissed the major aspect of the ACCC’s case about whether the wipes were suitable to be flushed down the toilet, finding the company had not made false and misleading claims about the flushability of the wipes. These findings were upheld by the Full Federal Court on appeal.
This case related to a type of wipes sold by Kimberly-Clark between May 2013 and May 2016. The products have since been discontinued, and replaced with a different range of flushable wipes.
“We know many Australian consumers place a premium on goods that are Australian made,” ACCC Chair Rod Sims said.
“This penalty should remind businesses of their responsibilities to ensure that representations on their website or packaging about the country of origin are accurate, so that consumers can make informed purchasing decisions,” Mr Sims said.
Kimberly-Clark agreed with the ACCC to make joint submissions to the Court in relation to penalty.
On 12 December 2016, the ACCC instituted proceedings in the Federal Court against Kimberly-Clark, and separately against Pental Limited and Pental Products Pty Ltd (in relation to the White King branded cleaning wipes, alleging that they each made false or misleading representations in relation to ‘flushable’ wipes marketed and supplied in Australia.
In April 2018, the Pental companies were ordered to pay $700,000 in penalties for making false or misleading representations about its White King ‘flushable’ toilet and bathroom cleaning wipes.
On 28 June 2019, the Federal Court judgment dismissed the majority of the ACCC’s case, except for finding that Kimberly Clark’s ‘made in Australia’ representation was misleading.
On 26 July 2019, the ACCC filed an appeal against Federal Court’s decision in relation to the ‘flushable’ representations.On 15 June 2020, the Full Federal Court dismissed the ACCC’s appeal.
Kimberly-Clark discontinued supplying the Kleenex Wipes in May 2016. The ACCC’s proceedings only related to the Kleenex Wipes sold between May 2013 and May 2016. Kimberly-Clark has since introduced a new flushable wipe product.
The ACCC was initially made aware of Kimberly-Clark’s ‘flushable’ claims following a complaint from CHOICE in October 2015, after it awarded a ‘Shonky’ to the Kleenex Wipes for Kids. The ‘made in Australia’ representation was identified during the course of the ACCC’s investigation.
Image from the Kimberly-Clark website