Kimberly-Clark Wants Court to Block D.C. Wipes Law

Bloomberg Law explored a similar issue in this video about a class-action complaint, over flushable wipes, filed in 2014. 

Kimberly-Clark Corp., the leading global tissue maker, will try to persuade a federal judge Dec. 13 to block the District of Columbia from implementing the nation’s first-ever law regulating flushable wipes.

In seeking an injunction that would prevent the law from taking effect, the manufacturer of flushable wipes sold under the Cottonelle, Scott Naturals, and Pull-Ups Big Kid brands, contends the city’s law will penalize the company as soon as it takes effect and argues that it violates the Commerce Clause.

The law was supposed to take effect Jan. 1, 2018, but District of Columbia officials said Dec. 8 they wouldn’t enforce the law until the D.C. Department of Energy and Environment has written rules to implement it and the associated compliance period expires.

Judge James E. Boasberg of the U.S. District Court for the District of Columbia will hear arguments from Kimberly-Clark and the lawyers for the city. Kimberly-Clark wants to block the Nonwoven Disposable Products Act of 2016 until the court has resolved the underlying challenges.
The law requires the D.C. Department of Energy and Environment working with the city’s sewer and water agency, DC Water, to write rules ensuring that wipes labeled “flushable” are in fact what they claim.

Disposable wipes are a big concern for wastewater utilities. Most varieties of disposable, nonflushable wipes, such as those used for makeup removal and baby care, are being flushed anyway, according to DC Water. Nonflushable wipes can gum up sewers and cause costly blockages.
No Penalties for Local Retailers

Kimberly-Clark claimed in a court filing that the law violates the Commerce Clause because it penalizes out-of-state manufacturers, but has no effect on local retailers who are selling their products.

“Local retailers can continue to do whatever they want with flushable wipes—including making the sales that trigger liability for Kimberly-Clark,” the company told the court in a filing. “Defendants do not identify a single labeling law anywhere that works like this one—by punishing out-of-state manufacturers for permitted sales rather than by controlling what may be bought or sold locally.”

The city’s lawyers disagree with Kimberly-Clark’s assertion that local retailers are off the hook. They also say the law has no teeth until the implementing regulations are issued. They point out that the agency hasn’t even proposed the rules yet.

The National Association of Clean Water Agencies, which represents publicly owned wastewater treatment plants, and the Water Environment Federation, a nonprofit providing education and training for water quality professionals, are backing the District of Columbia law because of the costly problems disposable wipes cause in sewer systems.

The case is Kimberly Clark Corp. v. District of Columbia, D.D.C., No. 17-01901, oral arguments 12/13/17.

The case in the video above is Kurtz v. Kimberly-Clark Corp., No. 14-CV-1142, 2017 BL 96204 (E.D.N.Y. Mar. 27, 2017)

Article by Amena Sayid; Video by Josh Block