On 18 April 2024, the Australian Competition and Consumer Commission (ACCC) commenced proceedings in the Federal Court of Australia against Clorox Australia Pty Ltd (Clorox) for allegedly making false or misleading representations that its GLAD-branded kitchen tidy and garbage bags were made of “50% ocean plastic”.
Specifically, as stated by ACCC Chair Gina Cass-Gottlieb:
We allege that the headline 'ocean plastic' statements and wave imagery on the GLAD bag packaging, and the use of blue coloured bags, created the impression that these GLAD bags were made from plastic waste collected from the ocean or sea, when this was not the case.
This significant development marks the first proceeding commenced by the ACCC in relation to greenwashing claims two years after the ACCC announced environmental and sustainability claims as an enforcement priority. In this period, the ACCC has had one other public enforcement outcome in relation to greenwashing to date: a court-enforceable undertaking given in November 2023 by yoghurt manufacturer, MOO Premium Foods Pty Ltd (MOO), in respect of false or misleading claims that its product packaging was made from “100% ocean plastic”.
In this article, we examine the claims made by Clorox and the ACCC’s allegations under the Australian Consumer Law (ACL). We also consider the matter in the context of the guidance published by the ACCC in December last year outlining its expectations for good practice when businesses are making environmental claims (ACCC’s Greenwashing Guidance). For further details regarding the ACCC’s Greenwashing Guidance, see our previous update here.
Clorox’s claims
The ACCC alleges in its Concise Statement that various claims made by Clorox relating to its plastic bags being made with “50% Ocean Plastic” or “50% Ocean Bound Plastic” were false or misleading. Details of the specific representations and the supporting information (which changed over time) are in the table below.
|
Product |
Period |
Claims on the front and side of the packaging |
Additional information on the back of the packaging |
|
Kitchen tidy bags (original product packaging) |
June 2021 to ~13 November 2022 |
“50% Ocean Plastic Recycled Bags” “Made using 50% Ocean Plastic*” “GLAD to be GREEN” (with a green coloured background underlying the words “to be GREEN”) |
“These bags are made from 50% ocean recycled plastic, and have the trusted strength of Glad® to hold household waste on its way to landfill. Recycling ocean bound plastic reduces plastic pollution before it enters the ocean, helping to reduce pollution in waterways, save marine life and put an end to irresponsible waste.” “*Made using 50% ocean bound plastic that is collected from communities with no formal waste management system within 50 km of the shore line.” |
|
Kitchen tidy bags (updated product packaging)
|
~6 March 2022 to ~July 2023 |
Same as above, except the second statement “Made using 50% Ocean Plastic” was updated to say “Made using 50% Ocean Bound Plastic*” (the first statement remained).
|
Same as above, apart from the changes tracked below (additions underlined, deletions struck through): “These bags are made from 50% ocean bound recycled plastic, and have the trusted strength of Glad® to hold household waste on its way to landfill. Recycling ocean bound plastic reduces plastic pollution before it enters the ocean, helping to reduce pollution in waterways, making the seas safer for save marine life, and helping to put an end to irresponsible waste.” “*Made using 50% ocean bound recycled plastic that is collected from communities with no formal waste management system within 50 km of the shore line.” |
|
Garbage bags |
~May 2022 to ~July 2023 |
Same as the kitchen tidy bags (updated product packaging), except the statement “50% Ocean Plastic Recycled Bags” instead read “50% Ocean Plastic Recycled Garbage Bags” (addition underlined) |
Same as the kitchen tidy bags (updated product packaging), except the statement commencing “These bags are made from 50% ocean bound recycled plastic…” instead commenced “These strong garbage bags are made from 50% ocean bound recycled plastic…” |
Visual elements that featured alongside the written claims above which the ACCC considers materially contributed to the overall impression conveyed to the consumer as to the environmental impact of the products include:
- the size and colour of the font;
- the blue colouring of the backgrounds and product itself; and
- the imagery used, including that of a wave.
Principle 7 of the ACCC’s Greenwashing Guidance emphasises that visual elements can significantly influence a consumer’s impression of the environmental impact of a product or service and should not give the wrong impression. In particular, “colours such as green and blue can carry environmental connotations” and when used together with other environmental imagery, they can contribute to an overall impression that the product has an environmental benefit.
Examples of the claims as made in respect of garbage bags are shown below:
The ACCC’s allegations
The ACCC alleges that by making the statements above as described in its Concise Statement (including the associated visual elements), Clorox represented that each product was made of 50% recycled plastic waste collected from the ocean or sea, or from an ocean or a sea (including up to the shoreline) (Ocean Plastic Representation), when in fact, the products were made of resin:
- up to approximately 50% of which was derived from recycled plastic that had been collected from communities situated up to 50 kilometres from a shoreline; and
- the remainder was made of non-plastic waste resin, processing aid and dye/ink.
Specifically, the ACCC alleges the Ocean Plastic Representation to be false or misleading as to:
- the composition of each product (in contravention of s 29(1)(a) of the ACL); and
- the environmental benefits of each product (in contravention of s 29(1)(g) of the ACL).
More broadly, the ACCC alleges that in making the Ocean Plastic Representation, Clorox engaged in misleading or deceptive conduct and conduct that was liable to mislead the public as to the nature, manufacturing process and characteristics of each product, in contravention of sections 18 and 33 of the ACL.
In relation to the number of representations made, the ACCC alleges that a separate Ocean Plastic Representation was made each time a product was supplied, presented for sale or viewed.
The ACCC seeks orders for declarations, penalties, injunctions, corrective notices, the implementation of a compliance program and costs.
Comparison to the ACCC’s matter against MOO
Broadly speaking, both MOO and Clorox described their products as being made of “ocean plastic” when they were made using plastic that had been collected within 50 kilometres of the shoreline.
Specifically, MOO’s packaging was made from what was described as “reclaimed ocean bound plastic”, being abandoned plastic waste that was collected within 50 kilometres of the shoreline in regions where waste management is inexistent or inefficient. Similarly, Clorox’s bags were made of resin of which up to approximately 50% was derived from recycled plastic that had been collected from communities situated up to 50 kilometres from a shoreline.
In its media release, the ACCC stated that it considers these representations to be false because the plastic was not collected directly from the ocean.
There is some definitional uncertainty around what precisely constitutes ocean bound plastic, with no clear industry consensus and not having been the subject of judicial consideration to date. However, the ACCC appeared to be satisfied that updated wording on the packaging of MOO products referring to “100% ocean bound plastic” (with references to “ocean plastic” removed) is not misleading, particularly given that the MOO undertaking requires MOO to not supply products in packaging bearing the “ocean plastic” representations and does not contain any restrictions on use of the phrase “ocean bound plastic” statement.
Prior to that amendment to the wording on the packaging of MOO products, the ACCC considered the “ocean plastic” representation was the dominant message conveyed and that the “disclaimers” in much smaller font on the top and back of its packaging that its “tubs and lids are made from 100% ocean bound plastic” were insufficient to overcome the misleading “ocean plastic” representation.
This is consistent with Principle 3 of the ACCC’s Greenwashing Guidance, which encourages business not to hide or omit important information and to explain any conditions or qualifications on claims. In that section of the ACCC’s Greenwashing Guidance, the ACCC provides an example involving “plastic free” claims on a pump bottle, with small print on the back stating that the claim only applies to the external bottle and not the cap, pump or internal tube. The ACCC expresses the view that the small print on the back does not assist, as it directly contradicts the headline claim “plastic free” on the front of the bottle and is not sufficiently prominent or proximate to the headline claim.
Similarly, the ACCC alleges that the Ocean Plastic Representation, given the prominence of the written and visual elements of the headline claims, was the dominant message conveyed by Clorox’s packaging. This was notwithstanding the disclaimers referring to “ocean bound plastic” in the small print on the back and in the updated packaging.
What next and how does this fit into the bigger picture?
Clorox is contesting the allegations and there has not yet been any admission finding that the claims are misleading under the ACL. The next step will be for Clorox to file a Concise Statement in Response, following which the parties will put on evidence before proceeding to a hearing. It may be some time yet until the judge reaches a decision, which will then be subject to appeal.
This case represents the long-awaited kick-off of the ACCC’s greenwashing enforcement in the courts and we expect to see further proceedings instituted over the coming months. As we outlined in a previous update here, ACCC Chair Gina Cass-Gottlieb recently stated that “the ACCC has a number of in-depth greenwashing investigations including in the energy and consumer products sectors”.
This forms part of a concerted effort by regulators to combat greenwashing, following in the wake of ASIC issuing infringement notices to participants across the financial services, superannuation and energy sectors since as early as October 2022, as well as instituting greenwashing proceedings, resulting in its first greenwashing win in the Federal Court last month (as we reported on here).
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