A federal judge tried to understand why he should agree to Kimberly-Clark Corp.’s request to block the nation’s first-ever flushable wipes requirements when the District of Columbia hasn’t even written the rules to implement them.
“How do we do that without even knowing what the requirements are?” Judge James E. Boasberg of the U.S. District Court for the District of Columbia on Dec. 13 asked attorneys for Kimberly-Clark, a leading global maker of tissues and moist wipes, including the flushable varieties.
Kimberly-Clark has sought a preliminary injunction that would prevent the law, which requires that wipes labeled “flushable” are in fact what they claim, from taking effect Jan. 1.
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. The company also argues the law violates the Commerce Clause of the Constitution.
Following court arguments Dec. 13, Boasberg said he would make a decision before the end of the year on whether to issue an injunction.
Is Injuction Premature?
Boasberg asked Kimberly-Clark’s attorneys, Eamon Joyce and Kwaku Akowuah of Sidley Austin LLP, whether that request premature.
District of Columbia officials said Dec. 8 they wouldn’t enforce the law until the D.C. Department of Energy and Environment, working with the city’s sewer and water agency, DC Water, has written rules to implement it and the associated compliance period expires.
The judge also asked the city’s attorneys to explain what harm would come from issuing an injunction against the Nonwoven Disposable Products Act of 2016 until the court has resolved the underlying challenges that Kimberly-Clark filed in September against the city and its sewer and water authority.
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.
Joyce said the District’s law was an overreach because it would end up regulating a whole suite of moist wipes, including the flushable and nonflushable varieties. To make his point, Joyce demonstrated how some wipes tear easily while others don’t, earning him a quip from Boasberg about pulling an “OJ demonstration” for him.
Joyce told the judge the city hasn’t chosen to regulate the consumers who flush these wipes but instead is targeting manufacturers and distributors that have no control over the product’s use.
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 said 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.”
When Boasberg asked what percentage of Kimberly-Clark’s market share the District of Columbia represents, neither Joyce nor Akowuah could answer.
“It is a small percentage,” Joyce said.
Although Boasberg noted the District won’t enforce the law for at least two years, Akowuah said the company feared it would still be liable for compliance beginning Jan. 1.
Gregory Cummings, the District’s assistant attorney general, reminded Boasberg that the city has agreed it will not enforce the law until the compliance period, which can take up to two years, has expired.
The city’s lawyers also disagreed with Kimberly-Clark’s assertion that local retailers are off the hook.
Judge Questions DC Water’s Role
Boasberg asked Akowuah why Kimberly-Clark named DC Water in the lawsuit even though it has no authority to enforce the law or the regulations when they are implemented.
Akowuah said the company tried to be conservative in its approach by including everyone who would be involved in writing and enforcing the wipes law.
DC Water’s attorney, Mark Crandley of Barnes & Thornburg LLP, said the utility was still trying to defend its claims that nonflushable wipes don’t disintegrate in the sewer drains.
DC Water said it spends $50,000 annually trying to unclog its drains, while New York City spends about $7 million each year on unclogging its collection systems from wipes, diapers, and other rags.
The National Association of Clean Water Agencies, which represents publicly owned wastewater treatment plants such as DC Water, 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.