FTC also took issue with the fact that Nice-Pak provided its trade customers, including retailers, with “information to make such unsubstantiated claims.”
FTC has jurisdiction over advertising aimed at consumers in the U.S., and was basically created in 1934 by President Woodrow Wilson to better ensure U.S. consumers aren’t duped with false information and/or misleading claims about products they are offered for sale.
Partly to that end, the commission first published green advertising guidelines for industry in 1993 to offer a path forward when it comes to making claims about environmental attributes for products offered to consumers. The hallmark of these guides, which were most recently updated in 2010, is that claims of environmental benefit or superiority must be scientifically substantiated.
Companies who don’t heed these guidelines run the risk of monetary fines at the low end of the enforcement spectrum and that their products will be taken off the market at the high end.
According to FTC, Nice-Pak violated Federal law by “misrepresenting that a certain formulation of its wipes: 1) are safe for sewer systems; 2) are safe for septic systems; 3) break apart shortly after being flushed; and 4) are safe to flush.” FTC further asserts that Nice-Pak’s tests for making flushability claims “did not reflect, real world household plumbing or septic conditions.”
The commission vote on the complaint was a unanimous 5-0 decision, but FTC agreed to take public comment on the matter through June 19. If the consent order is adopted, which appears likely, Nice-Pak will be on the hook for up to $16,000/violation if the company makes similar, unsubstantiated claims going forward.
In response to the agreement, Ad Age magazine is reporting that Nice-Pak “won’t change its marketing at all, because it had already discontinued the product covered by the deal and has tests to substantiate its current wipes are safe to flush.”
This leads to the real issue in all of this – the difference between flushable materials and dispersible materials.
The concept of flushability is relatively new and, in the nonwovens industry, has largely been driven by voluntary standards created collaboratively by INDA and EDANA. These standards, now in their third iteration (they were last updated in 2013) are currently based on seven different tests, each of which must be passed in order to claim flushability.
According to a summary of the INDA/EDANA standards published last year in the National Law Review, a product can be deemed “flushable” if evidence indicates that it meets three conditions: 1) it must clear toilets and properly maintained drainage pipe systems when recommended usage instructions are correctly followed; 2) it must be able to pass through wastewater conveyance systems and be compatible with wastewater treatment, reuse and disposal systems without causing system blockage, clogging or other operational problems; and 3) it has to be unrecognizable in effluent leaving onsite and municipal wastewater treatment systems and in digested sludge from wastewater treatment plants that are applied to soil.
All this, of course, is different from the standards most valued by water treatment facilities – which are formally known as Publicly Owned Treatment Works, or POTWs – throughout the country as well clean water advocates, wastewater industry associations, municipal managers and others who contend absolutely nothing should be placed in a toilet unless it is dispersible. As with standard toilet paper, these folks want to ensure any product consumers are told is safe for the toilet will completely break apart during the flush process.
As noted by Jessica Rich, director of the FTC’s Bureau of Consumer Protection, this flushable/dispersible conflict is at the root of the FTC consent agreement with Nice-Pak.
“The evidence didn’t back up Nice-Pak’s claim that their wipes were safe to flush,” she says. “If you claim a product is flushable, it needs to flush in the real world, without clogging household plumbing or sewer and septic systems.”
Indeed, over the past couple of years at least three sets of field tests have been conducted by POTWs and wastewater managers in which wipes labeled as “flushable” (i.e., presumably capable of meeting INDA/EDANA standards) simply don’t perform as advertised.
In one of these field tests, for instance, a consumer wipe labeled as flushable appears to be completely intact after 100 flushes in a mocked up residential toilet.
A similar field test conducted in Vancouver, WA, involved flushable wipes dyed different colors so they could be readily identified and then deposited under manhole covers at three separate points leading to the water treatment plant – the furthest point being 5,000 feet away. After 45 minutes in the sewer system – including a trip through the pumps – the dyed wipes were completely intact save for some rips and tears.
Other forms of non-dispersible material are routinely tossed into household and commercial toilets, of course, and can wreak havoc with residential plumbing systems and POTWs alike. But consumer products labeled as being “flushable” are now low hanging fruit for cost recovery efforts, municipal and/or statewide bans (several of which have been proposed but none of which has yet to be enacted), and other restrictions.
Of these unpleasant prospects, cost recovery appears the biggest challenge to industry at present. An audit conducted in Vancouver, WA, for instance, indicates that POTW pumps which were intended to last 30 years had to be replaced within 10-15 (resulting in about $900,000 of unnecessary costs) and that annual expenses for deploying crews to “de-rag” pumps ran nearly $80,000. The city also paid about $30,000/year in extra energy caused by running clogged pumps. Municipal lawsuits seeking to recover even a portion of these costs appear to be coming into vogue.
Ad Age is also reporting on a recent Supreme Court decision that could have a major impact in this arena. Specifically, the Court refused to hear an appeal from a lower Federal court in Alameda County, CA, which ruled that companies who market pharmaceuticals must fund drug-return programs meant, in part, to keep prescription drugs out of local POTWs.
One POTW director is quoted in the article with his observation that this Supreme Court decision “may open the door for municipalities to bill marketers for damage flushable wipes cause to sewer systems.” Considering New York City alone estimates that flushable wipes have been responsible for more than $18 million in added costs over five years, the article notes this development could quickly bankrupt the flushable wipes industry in the U.S..
Another gloomy cloud on the horizon, according to ABC News, is a federal class-action lawsuit filed by a doctor in New York against Kimberly-Clark and Costco after he experienced plumbing problems in his home. “[K-C and Costco] should have known that their representations regarding flushable wipes were false and misleading,” the complaint states while seeking damages of at least $5 million. The suit was filed on February 21 in the Eastern District of New York and represents 100 people around the country who have experienced plumbing problems in their homes after using flushable wipes.
If this suit is successful, it’s nearly impossible to imagine how many more similar suits will follow, especially in light of FTC’s recent action.