Last month, Kimberly-Clark, a maker of traditional and advanced personal hygiene products, sued the District of Columbia in federal court. It charged that the city’s Non-woven Disposable Products Act (NDPA) violates the First Amendment, the Commerce Clause, and the Fifth Amendment’s Due Process Clause. Whether at trial or on appeal, the Texas-based company should and almost certainly will win this case. It will be a good lesson for local governments across the country.
The D.C. Council passed the act in late 2016. It was prompted by concerns about minor clogging in city sewers and news of significantly larger problems in British sewers. The council prohibited manufacturers of disposable personal hygiene products that did not meet Washington’s then-and-still-undefined flushability standards from labeling their products “flushable.” It mandated a label of “unflushable” instead.
{mosads}Sewage collection studies in California, Maine, New York, and elsewhere have all shown that flushable products of the kind D.C. seeks to control make up little to none of the materials captured in the test screens of municipal wastewater systems. In a 2016 examination commissioned by the City of New York and from which manufacturers were kept out, flushable wipes accounted for less than 2 percent of material found, none of it Kimberly-Clark products. In other words, flushable wipes don’t cause sewer problems. Instead, the tests found that non-flushable baby wipes, tampons, paper towels, and trash do.
With no evidence that limiting the description of flushable wipes will yield cleaner sewer lines and no indication that the city considered more targeted means to achieve its goal, it is hard to see how the NDPA’s speech restriction can pass constitutional muster.
Commercial speech — both banned and compelled, per Washington’s “unsafe to flush” label — are typically subject to a lower level of constitutional scrutiny than political speech. Even so, forced disclosures must contain factual and widely agreed upon information and must avoid being unduly burdensome.
The week after the Kimberly-Clark filing, the Ninth Circuit ruled that a San Francisco ordinance requiring ads to warn consumers about the health effects of sugar-sweetened beverages cannot go into effect because it is likely unconstitutional. The judges determined that requiring labels and advertisements to include an unqualified statement that sugar causes “obesity, diabetes and tooth decay” was “misleading” and “controversial” (meaning contestable). No level of government may compel companies to provide messages that are one-sided or biased against their own views.
Washington’s NDPA raises the same issues and should meet the same fate. Given that Kimberly-Clark’s flushable wipes satisfy the flushability guidelines of the Federal Trade Commission, requiring the company to label its wipes unsafe to flush is neither factual nor uncontroversial.
The D.C. law also steps on Congress’s power to regulate interstate commerce. The NDPA does not regulate the actions of D.C. retailers, distributors, or consumers, only the out-of-state labeling and manufacturing of companies like Kimberly-Clark. But Kimberly-Clark sells through wholesalers, so it cannot control where its products ultimately reach consumers. How can a national market in the product survive if every town, city and county does as Washington has done?
And it doesn’t take an expert in sewage systems or economics to see that the law will generate little, if any, benefit for Washington or anyone else. The current cost of addressing all wipes-related clogs is less that one-ten-thousandth of one percent the city’s water and sewage operating budget and a significant portion of D.C.’s wastewater comes from adjoining counties that feed into the city’s and are unaffected by the law. Courts are bound to find that the law’s burden on interstate commerce far outweighs the potential benefit.
Finally, as the company charges, the NDPA clearly violates the Due Process Clause of the Fifth Amendment and basic rules of fairness. The law’s standards are so vague that it is impossible to know what products comply and what don’t, a lack of specificity that the courts have long considered constitutionally unacceptable – as is penalizing out-of-state manufacturers for sales by parties outside their control.
The District of Columbia understandably wants to keep its sewer lines clear, but the NDPA is not a logical or legal way to do so. Educating consumers about what is and isn’t flushable would be a much more effective way to go. Kimberly-Clark has an open and shut case.
Stephen Shapiro and Timothy Bishop are members of the Mayer Brown Supreme Court & Appellate practice, which Mr. Shapiro founded. Mr. Shapiro was Deputy Solicitor General of the United States (1981-83). Neither they nor their firm participated in the cases discussed in this article.