The national consumer watchdog has failed to persuade a judge that Kimberly-Clark Australia misled customers when it said its wipes were flushable.
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The decision was greeted with dismay by consumer groups and water utilities which say wipes contribute to sewage blockages and terrible plumbing bills, disrupt customer services and have an impact on the environment through sewage overflows.
The Australian Competition and Consumer Commission claimed the company made false or misleading representations between May 2013 and May 2016 about the suitability of its Kleenex Cottonelle Flushable Cleansing Cloths (KCFC) wipes to be flushed down the toilet.
"We argued that Kimberly-Clark's wipes did not break apart quickly once flushed and therefore should not have been considered flushable," ACCC chair Rod Sims said.
But in the Federal Court on Friday, Justice Jacqueline Gleeson said she was not persuaded the ACCC's evidence was sufficient to support a conclusion that the wipes were unsuitable for flushing.
"If it is sufficient, I do not draw that conclusion because the instances of blockages identified by the complaints are so few in the context of the total sales of the wipes that they are properly characterised as insignificant," she said.
"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."
But, it did not demonstrate that the company's KCFC wipes had caused harm to, or inflicted cost on, any single municipal system in any particular instance.
Evidence from the company's business records revealed 28 consumer complaints about household system blockages during the relevant period, while millions of packets of KCFC wipes were sold during that time.
She found the risk of harm to sewerage systems from the wipes was greater than the risk of harm posed by toilet paper, due to its inferior properties of breakdown and dispersion.
"However, the evidence does not reveal the risk materialised except to the insignificant extent revealed by the consumer complaints."
The ACCC was successful last year in a similar Federal Court case against Pental Ltd and Pental Products Pty, which was ordered to pay $700,000 for making false and misleading representations about its White King "flushable" bathroom cleaning wipes.
Outside court, Adam Lovell, executive director of Water Services Association of Australia, said it was developing the first Australian standard on flushable products.
"Until the standard is finalised we advise consumers to only flush the 3Ps - pee, poo and toilet paper," he said.
Consumer group Choice's head of campaigns and policy Sarah Agar said the decision was terrible news for people who care about the environment and the country's waterways.
"Choice is warning Australians not to flush wipes," she said.
Justice Gleeson found Kimberly-Clark did mislead customers by claiming the wipes were made in Australia, when they were made in Germany, South Korea and the UK.
A hearing on the ACCC's claims for relief will be held at a later date.
Australian Associated Press
