A federal court judge has temporarily halted a Washnngton D.C. law that regulating the labeling of disposable wipes—or at least those made by Kimberly-Clark—as flushable after finding it likely treads on the company's First Amendment rights.
The law, slated to take effect on the first day of 2018, defines a flushable wipe as one that disperses in a short period of time after flushing, is not buoyant, and does not contain plastic or any other material that does not readily degrade. It prevents manufacturers from labeling their product as “flushable” unless it meets those requirements, and it requires manufacturers of nonflushable wipes to communicate that “clearly and conspicuously.”
In a 30-page decision issued Dec. 22 granting a preliminary injunction requested by K-C, U.S. District Court Judge James Boasberg wrote that D.C. has “understandably” embarked on a campaign to address this “purported scourge of our sewer system: nonwoven disposable wipes.” However, Boasberg wrote, the District does not appear to have considered alternative, less-restrictive statutory language (a disclaimer rather than a ban, say), which the city should have done given that the meaning of “flushable” is so disputed — and a “one-track mind is fatal.”
The District prefers a rigorous “flushable” standard as defined by the National Association of Clean Water Agencies, while K-C says its wipes meet a standard crafted by industry trade groups such as INDA and EDANA.
“While the District is free to pick sides in that battle,” Boasberg wrote, “it cannot force Kimberly-Clark to be the messenger for its position, at least without surviving intermediate scrutiny.”
K-C has not commented on the ruling.
According to a report in the Washington Business Journal, Councilwoman Mary Cheh, D-Ward 3, who sponsored the flushable wipe bill, described the ruling as “pretty disappointing but quite limited. She did take issue with what she described as the "heart of the ruling," that the government has to "give in" to a standard crafted by a trade group on its members' behalf.
“What the industry is saying in its essence,” she said, "is ‘We the industry have developed our own standard, and we say, at least Kimberly-Clark says: This product is flushable.’"
But the District government, Cheh added, borrowed its standard from the very water and sewer authorities that are spending thousands of dollars to clean up the mess that wipes make of sewer systems.
The injunction, which could be lifted or made permanent when the District finally issues rules to implement the new law, only applies to Kimberly-Clark's “flushable” wipes. The city may “continue to regulate other wipes, such as baby wipes, which disintegrate less readily,” the judge wrote.