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D.C.’s Flushable Wipes Law Gets Clogged in District Court

Wednesday, January 10, 2018

Robert Kelsey

Associate Editor, Environmental Law Reporter

Flushable wipes have proven to not be so flushable and are wreaking havoc on some of the world’s major cities. Municipalities like New York City, spend millions of dollars to remedy clogging issues the wipes cause. New York City officials said in 2015 that "wipe-related equipment problems," have cost the city more than $18 million since 2010. The Whitechapel fatberg, described as a monster, is a rock-solid agglomeration of fat, disposable wipes, diapers, condoms, and tampons lurking beneath the East End of London. Who will save cities from the menace?

Flushable sanitary wipes have caused infrastructure headaches (Your Best Digs / Flickr).

Washington, D.C., took matters into its own hands and sought to pass a law that would change the way flushable wipes are labeled. This was to no avail. The District Court for the District of Columbia ruled that the city's “flushable wipe” law won't take effect as scheduled. The law, which was to take effect January 1, 2018, stated that sanitary wipes labeled "flushable" must readily break up and degrade in sewers or they could face fines. Kimberly-Clark, maker of brand name products such as Kleenex facial tissue and Huggies disposable diapers and baby wipes, sought to enjoin the implementation of the law, as it already manufactured and advertises wipes as flushable that do not meet the law's criteria, and feared the law may force it to change how it advertises its wipes.

The city argued that the injunction was unnecessary as it had not promulgated regulations to implement the act and would take no enforcement action until regulations were in place. The court found this insufficient and feared that the statute could still impose retroactive liability against the manufacturer for wipes manufactured after January 1, 2018. Further, the court held that the act violated the manufacturer's First Amendment rights as it forces it to label its product in a way that is not "purely factual and uncontroversial." The injunction was granted.

D.C. Council Chairman Phil Mendelson (D) said he was surprised by the ruling, stating that the regulation is “. . . no more of a First Amendment issue, [he] would think, than telling tobacco companies what they have to put on packages of cigarettes.”

In the opinion, Judge James Boasberg wrote “It is true that the FDA, for instance, could require Hostess to disclose the calorie count of Twinkies, even if the company’s marketing arm might prefer otherwise,” and continues “[b]ut it cannot require that company to tell consumers its sugary treat ‘should not be eaten’ nor ban it from labeling that product ‘edible.’ ”

A Kimberly-Clark spokesperson said the company does not comment on ongoing litigation, but added that it is pleased with the decision.

The law’s constitutionality will be revisited when the city drafts regulations for specifics on what the labels it requires will look like and say.