The ACCC takes misuse of a Made in
Australia logo seriously with a penalty of $200,000 for
The recent decision of Australian Competition & Consumer
Commission v Kimberly-Clark Australia Pty Ltd (No 2)  FCA 102 (16 February 2021) (Abraham J) examines the
important role that a Made in Australia logo plays in a
consumer’s decision to buy a product, and the hefty penalty
that a business will pay if it uses the logo for goods not
manufactured in Australia.
The misuse of the Made in Australia logo by Kimberly-Clark
Kimberly-Clark Australia (RCA) published the Made in
Australia logo (an image of the map of Australia along with
the words ‘Made in Australia’) at the bottom of its Kleenex
Cottonelle website (www.kleenex-cottonelle.com.au) for 4
months from 28 October 2015 to 24 February 2016 (when it
removed the logo after receiving a letter from the ACCC).
The logo was:
The website predominantly advertised RCA’s Kleenex
Cottonelle toilet paper products which were made in
Australia, along with the Kleenex Cottonelle Flushable
Cleansing Cloths (KCFC Wipes) which were not. The products
were not sold online.
The misrepresentation was confined to the website. The Court
noted: “The packaging of the KCFC Wipes did not contain the
‘Made in Australia’ logo or any other statement to this
effect. At all relevant times, the packaging for the KCFC
Wipes accurately stated the country in which the product was
As could be expected of a global personal care company with
manufacturing operations in 39 countries and approximately
43,000 employees, headquartered in Dallas, Texas, its senior
management team had approved of the publication of the ‘Made
in Australia’ logo on the website.
As the Federal Court noted in the joint submissions: “The
basic falsity of the representations were readily avoidable
and a corporation of the size, status and resources of KCA
ought to have prevented the wrongdoing at the outset”
(judgment, paragraph 53).
The Court accepted that the publication was an oversight and
KCA admitted that it had contravened s 29(1)(k) of the
Australian Consumer Law. That is, it had made a false or
misleading representation concerning the place of origin of
The harm to
The Court stated that consumers were harmed in these ways:
- “Consumers could not purchase the KCFC Wipes through the
Kleenex Cottonelle website. However, consumers who did view
the website were only able to determine that the
representations were false by viewing the physical products
[in a retail store] and reading the packaging (which
provided accurate information about the country in which the
product was made).” (judgment, paragraph 40)
- “The claims play on consumers’ desire to purchase goods
that are manufactured in Australia to support local
businesses and in a context where it is difficult for
consumers to independently verify the claims.” (judgment,
- “It is important that consumers have accurate information
from businesses, particularly those the size and presence of KCA as to the place of origin of particular goods. This is
particularly so where, as in this case, the representations
were on a website, where there is a difficulty for a
consumer to verify the information. Such representations can
be a significant influence to some consumers on their choice
of product.” (judgment, paragraph 52)
The pecuniary penalty
The Court was satisfied that it was appropriate to make
these orders in accordance with the submissions of the ACCC
- The respondent pay the Commonwealth of Australia a
pecuniary penalty of $200,000 in total in respect of the
contraventions of section 29(1)(k) of the Australian
Consumer Law declared by the Court pursuant to Order 1,
within 14 days of the Court’s order.
- The respondent is to pay the applicant’s costs of and
incidental to the penalty hearing, to be taxed if not
The Court took into account these circumstances in
considering the penalty:
- The place the representations were made was on a website,
accessed by an estimated many hundreds of consumers.
- The penalty must be higher than the cost of an effective
compliance program so as not to tempt businesses to consider
non-compliance as a ‘cost of doing business’.
- The penalty must be an appropriate deterrent penalty which
“will validate the behavior and efforts of compliant
businesses and send a warning to non-compliant ones”.
- ”KCA took immediate steps to remove the misleading
statement once the ACCC brought it to its attention;
admitted the statement was misleading; and cooperated with
the ACCC including to agree to the penalty amount to
recommend to the Court.”
- It was appropriate to “group the contravening
representations into one to reflect the significantly
overlapping nature of the contraventions”.
- KCA uses “a marketing approval system” to review and
approve marketing claims. This contravention occurred
despite the system because it paid “insufficient care to the
need for compliance with the Australian Consumer Law”.
- “While the contraventions were relatively minor, the
prominent position and apparent financial strength of KCA,
require that a material penalty be imposed”.
- The amount of loss the consumers suffered by purchasing
“the KCFC Wipes based on the mistaken belief that those
products were made in Australia” was “not readily
quantifiable but it is unlikely to be substantial”.
- KCA has not previously been found to contravene the
Australian Consumer Law.
- The penalty was set by reference to the maximum penalty
applicable at the time of $1.1 million per offence. Today
the penalty would be much higher given that the maximum for
corporations is the greater of $10 million or three times
the value of the benefit received, or 10% of annual turnover
in preceding 12 months, if court cannot determine benefit
obtained from the offence.