D.C. Threatens to Punish Manufacturers for Failing 'Flushability' Standards It Won't Define
The 'Do Not Flush' fight provides a perfect case study in arbitrary regulation and government incompetence.
To flush or not to flush? The Kimberly-Clark Corporation is suing D.C. over the question, after a law the city passed last year tried to keep the company from labeling its disposable wipes "flushable."
The whole matter might seem a little silly for those outside the septic or paper product industries. But it provides a perfect case study in arbitrary regulation and government incompetence.
Under the Nonwoven Disposable Products Act of 2016, passed last December, disposable paper products such as cleansing wipes are forbidden from being labeled as flushable "unless there is competent and reliable scientific evidence to substantiate that the non-woven disposable product is flushable sewer safe, and septic safe." Products that don't meet this standard must be labeled with "Do Not Flush."
Come January 1, 2018, manufacturers of everything from facial tissues to paper towels could face civic penalties and fines for failure to meet the new labeling requirements.
Yet the city has offered no guidance on what counts as "competent and reliable scientific evidence" of flushability, nor information on how the city will test suspicious paper products. And repeated requests by Kimberly-Clark for more information went unanswered.
At hearings about the rule, experts for the city suggested that no disposable cleansing wipe currently on the market was fit to be flushed, and that even some toilet paper wasn't flushable.
This puts companies like Kimberly-Clark—a major manufacturer of personal care products (including several lines of cleansing wipes that can supposedly be flushed without clogging toilets and pipes)—in a bind. They have no way to determine how to ensure their products will meet D.C.'s standard. But if they fail to follow these unknowable rules, D.C. can punish them.
In a lawsuit filed September 15 in the U.S. District Court for the District of Columbia, Kimberly-Clark contends that the law is unconstitutional for a host of reasons, including its failure to set clear standards for avoiding sanctions.
The suit also argues that D.C. is violating Kimberly-Clark's First Amendment rights by forcing the company to make untrue statements about its products and that it impermissably seeks to hold Kimberly-Clark "vicariously liable for the actions of others, namely the unaffiliated businesses that buy Kimberly-Clark's flushable wipes elsewhere in the United States and then—lawfully—choose to resell them to local consumers."
And then there is the question of the Constitution's Commerce Clause, which grants Congress the power to regulate interstate commerce. Kimberly-Clark products are made in South Carolina, where labeling the wipes as flushable is legal. Thus, the suit argues, D.C.'s flushable-product policy "invalidly seeks to regulate the conduct of manufacturers in other states by imposing civil sanctions on conduct that is entirely lawful" there. Meanwhile, the act entirely fails to regulate any local activity:
It remains lawful under the Act for retailers to buy wipes labeled as flushable and to resell those products to consumers in D.C., regardless of whether that labeling is deemed consistent with the Act. Likewise, it remains lawful for D.C. consumers to purchase and use those very same products, no matter how they are labeled. But it is the manufacturers who exclusively bear liability for this activity, as the only thing regulated by the Act is non-local manufacturing and labeling activity. Thus, whether construed as a per se invalid regulation of out-of-state commercial conduct or as a regulation that inordinately burdens interstate commerce, the Act violates the Commerce Clause.
According to a company statement, Kimberly-Clark wipes "are engineered to rapidly lose strength as soon as they are flushed" and "meet or exceed widely accepted industry guidelines for flushability." In the "largest sewer collection study, conducted in New York City in 2016, not a single Kimberly-Clark flushable wipe was found," it notes. A Federal Trade Commission investigation agreed that the wipes are sufficiently flushable.
The sponsor of the new law, D.C. Councilmember Mary Cheh (D–Ward 3), derided the lawsuit in a WAMU interview. "Honestly, we compel speech all the time," she said. "We tell food vendors that they have to label their products. We have labeling requirement all the time, and to characterize it as compelled speech is really no argument at all."
The same goes for Commerce Clause concerns. "Guess what? A lot of our safety regulation affect manufacturers out of state," Cheh said.
This seems disingenuous, since the suit isn't arguing that local governments can't compel some sorts of commercial speech or set some regulations that affect products made out of state. The issue here is that D.C. has set an impossible regulatory standard, one that companies have no way of knowing whether they meet or fail.
