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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.

Ingram Publishing/NewscomIngram Publishing/NewscomTo 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.

Photo Credit: Ingram Publishing/Newscom

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  • Sevo||

    "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.""

    Translation from lefty:
    'We already ignore the constitution, so what's the big deal?'
    Amazingly enough, the 9th might even disagree:
    "San Francisco's soda law blocked by appeals court"
    [...]
    "But the Ninth U.S. Circuit Court of Appeals in San Francisco said free speech includes the right of advertisers to refuse to convey warnings about their products, except when the warnings are clearly factual."
    http://www.sfchronicle.com/bay.....210303.php

  • Don't look at me.||

    Wouldn't it be easier to just send them an invoice to pay a tribute to the council?

  • Marcus Aurelius||

    You must also bend the knee.

  • Chipper Morning, Mean Girl||

    You must bend both knees. The potty buddy really helps.

  • Crusty Juggler - Lawbertarian||

    The War on Fatbergs begins!

  • Brandybuck||

    My nickname in college was Fatberg...

  • Crusty Juggler - Lawbertarian||

    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.

    I like my regulatory standards like I like my women: expensive and capricious.

  • Colossal Douchebag||

    Back off, haters! We're LEGISLATING here!

    Interpretation is for the judicial geeks down the hall.

  • Enjoy Every Sandwich||

    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.

    Toilet paper? So it will be against the law to wipe your ass in D.C.?

  • Rhywun||

    DC can't become Venezuela without a little encouragement from city council.

  • BestUsedCarSales||

    DC needs more Police/Citizen confrontation in order for peace to reign.

  • damikesc||

    Perhaps not reducing the amount of water used in toilets per flush to levels so low you cannot flush much of anything would have been a wiser decision.

  • Ron||

    especially since the water levels in toilets have become so low that cities now have to send out special expensive equipment to flush the sewer systems and lets not forget the water that the sanitation plants now have to add. we are using the same amount of water as before but we are just introducing it at different locations at greater expense.

  • Crusty Juggler - Lawbertarian||

    Serious question: In order to help save the planet, when will America finally adopt a national policy mandating the "If It's Yellow, Let It Mellow, If It's Brown, Flush It Down" standard so many of us practice at home?

  • ||

    I'm confused hasn't the whole solid waste down the drain problem been solved multiple times over by shitting in the sink garbage disposals?

    I mean, I know we're probably stepping right into a protectionist racket where zoning laws will require buried disposals attached to sewage mains on all new construction, but I can't understand how Kimberly-Clarke hasn't farmed this out to Hamilton Beach, Kohler, or Waring.

  • Rhywun||

    I don't think I want any part of that area anywhere near spinning blades.

  • ||

    I don't think I want any part of that area anywhere near spinning blades.

    I don't think I want to know how you use your toilet.

    One thing that did occur to me is that it would thwart/validate/changeup the 'no-knock' raid narrative.

  • Hank Stamper||

    I bet Mary flushed a tampon down the toilet and then got a nice bill from her plumber, that she feels she shouldn't have to pay. So now we get a new shitty law.

  • Marcus Aurelius||

    Pun intended, natch.

  • Brandybuck||

    It's not a joke. My dad once rented the cabin to a women's group, and they all happened to have synchronized periods, and flushed all their tampons. The pipes burst and there was shit and tampons all down the mountain side. You can tell women not to flush their tampons, but they will flush them anyway, because women are always right, men are always wrong, and it's the men who have to make the repairs if something goes wrong.

  • GILMORE™||

    Cat Fight


    Ashley Rae
    Verified account @Communism_Kills

    I don't get why someone is speaking at a free speech event when they wanted someone blacklisted for a sandwich joke.

    she raises a valid point.

    also, if everything turns into italics after this, i apologize.

  • ||

    Due to the lack of alt-text, I'm going to assume the fellow pictured is Reason New Guy, Christian Britschgi.

  • Crusty Juggler - Lawbertarian||

    "I'd brush around his rim, if you know what I mean."

  • GroundTruth||

    D.C. Councilmember Mary Cheh (D–Ward 3), derided the lawsuit in a WAMU interview. "Honestly, we compel speech all the time," Ms Cheh, please state the following "I am an authoritarian, and an idiot".

    There now, was that so hard?

  • BestUsedCarSales||

    This whole thing reads as a nearly open admittance that they want to be able to pick and choose enforcement of law.

  • Brandybuck||

    D.C is one city out of hundreds. Just stop selling your products in D.C. until such a time as the city provides for a reasonable environment to do business. Threats to arbitrarily fine companies should be appropriately met by refusing to do business in such jurisdictions.

  • p3orion||

    Nope. Avoiding Democrat-controlled urban areas like DC may make business sense, but sure as God made little green apples, the council would run right to the WaPo and scream that it's illegal race-based redlining:
    "Kimberly-Clark hates black people! Black Loos Matter!"

  • wef||

    "government incompetence" is a default hypothesis of the gullible and superstitious.

  • Bender B. Rodriguez||

  • p3orion||

    It's a little disturbing you knew to look for that one and load it up...

  • jelabarre||

    Simple; stop selling toilet paper to Washington DC. There's plenty of useless legislation and law books they could wipe with instead.

  • p3orion||

    "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."

    So how does that square with California's apparently-legal insistence that every manufacturer place cancer-scare warnings labels on half the products you see in stores, as well as setting their own "green" targets for automobiles and other big-ticket durable goods?

  • Good Morning||

    Premise: The Disposable Wipes issues is a feel good issue and distraction from the lead contamination issue (dcwasawatch.blogspot.com/2009/06/ wasas-health-advisor-to-apologize-for.html)

    If George Hawkins, the General Manger of the DC Water and Sewer Authority (who gets paid more than the Mayor and says the Authority is a "Blue Collar Environmental Organization" georgehawkins.net/) and Councilmember Cheh (who "represents" Ward 3 but has a "part time" job that reportedly pays more than her Council job teaching at GW University in a different Ward of DC) spent as much time worrying about lead service lines as they do about disposable wipes they might have made a huge dent in the lead issue by now.

    According to this 2016 article by a resident in the Petworth Neighborhood of NW Washington, DC : petworthnews.org/blog/lead-water-remediation

    "Before my lead water service line was replaced, the lead levels in the water from my home measured almost 20 times the maximum acceptable levels for lead! After the replacement of my water service lines and the lead water lines running down the street in front of my house, my water tested under acceptable Environmental Protection Agency levels."

  • Good Morning||

    part 2:

    Given the fact that there are tens of thousands of lead service lines in the City and that WASA knows this (https://geo.dcwater.com/Lead/) why did WASA choose to not present this information in their August 2017 "What's on Tap" newsletter (Volume 18, Issue 7) "tip" "For best drinking water quality, follow these tips." In the article there are five tips. Not one tip mentions lead service lines, lead in the water or checking to see if you have a lead service line. Tip 4 states: "Routinely replace filter cartridges to prevent any build up of bacteria and metals. Be sure to follow the manufacturer's instructions for filter replacement."

    Is this a violation of Sections d, e and f of the Washington, DC Consumer Protection and Procedures Act?

    § 28-3904. Unlawful trade practices.
    It shall be a violation of this chapter, whether or not any consumer is in fact misled, deceived or
    damaged thereby, for any person to:

    (d) represent that goods or services are of particular standard, quality, grade, style, or model, if in
    fact they are of another;

    (e) misrepresent as to a material fact which has a tendency to mislead;

    (f) fail to state a material fact if such failure tends to mislead;

    So in conclusion how about Councilmember Cheh and General Manager Hawkins and the WASA management and Board solve their lead service line problem. As a start they might want to stop sending out newsletters that make no mention of the problem.

  • Mannie||

    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.

    Therefore, unless DC has a blackletter standard that defines flushability, KC's products comply with the ordinance.

  • IMissLiberty||

    When my city was trying to mandate, among other things, that the name and phone number of a "responsible person" be placed on all uninhabited structures, I brought signs with the council-members' names and phone numbers on them, and asked who wanted to have theirs put on the dog house (the others could go on the fence, the tree-house, or the garage).
    There were so many flaws in the proposed ordinance, I was able to go back for a dozen meetings in a row and point out examples of ignorance of the law, mandated speech, drafting errors, and inconsistency in the defined terms, like the one for "structures" (city attorneys often mush a bunch of clauses taken from other cities together), that they finally shelved it for a few more years. The time to head these off is before they're passed.

  • Tamfang||

    How about labeling as "flushable except in the District of Columbia"?

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