Are “Flushable” Wipes Unconstitutional?

Courtesy of the State of Colorado

A new Washington D.C. law forbids companies from marketing their wet wipes as “flushable.” It turns out that the wipes themselves aren’t unconstitutional. Rather, Kimberly-Clark Corporation, a multi billion-dollar producer of flushable wipes, is suing D.C. over the right to market their wipes as “flushable.” Kimberly Clark contends that forbidding them from marketing their wipes as flushable, violates their first amendment rights. Interesting argument, don’t you think?

Class action lawsuits are springing up in the news on the Internet. Homeowners, cities, and others are fighting to be reimbursed by wipe makers from damages caused to their sewer pipes and city pump stations.
This month, a U.S. District Judge in Brooklyn certified the class action lawsuit initiated by a homeowners association (HOA) in New York against retail giants like Walmart, Target, Costco, and others. The suit seeks to ban companies from selling wipes in packages marked “flushable.” The HOA contends the wipes are costing the state of New York over $18 million a year. 
Wyoming, Minnesota filed a class action lawsuit against Proctor & Gamble, Kimberly-Clark, Nice-Pak and three additional wet wipe manufactures for marketing their wipes as “flushable.” The trial is not expected to begin until April 2018. However, a judge ruled this past year that Wyoming must collect, photograph, and videotape a third of all its sewer clogs over a 180-day span so that the companies’ lawyers could get a first-hand look at the mess (Yes, insert lawyer jokes here.)Thankfully, the city was allowed to dispose of the sewage after seven days.

The debate is even rising to a federal level. A Maryland congressman moved to prevent D.C. officials from enforcing the new law by trying to insert an amendment into an unrelated federal appropriations bill. Paul Strauss, one of the district’s two nonvoting “shadow” senators said, “Now they’re literally in our toilets.”

Manufacturers have been actively lobbying Congress to repeal any local laws and protect their right to grow their businesses. The wipes market is a 6 billion dollar a year industry with sales growing 5 to 6 percent annually. In a win for the district, Rep. Andy Harris (R-Md.), who attempted to overturn the wet wipes law, ultimately withdrew his amendment at the last minute. The law is scheduled to take effect January 1, 2018. It bans the sale of wet wipes in the District unless they are made of biodegradable materials and are non-buoyant. They can only be labeled “flushable” if they break apart “in a short period after flushing in the low-force conditions of a sewer system.” Wipes that don’t meet that standard must be “clearly and conspicuously” labeled as something that “should not be flushed.”
Manufacturers of flushable wipes claim that their wipes break down in the toilet. Kimberly-Clark said it spent millions of dollars and over two decades of study to develop wipes that “lose strength” once they hit toilet water and “become increasingly likely to break into pieces” as they move through home plumbing and sewer pipes.

According to Kimberly-Clark “Cottonelle Flushable Cleansing Cloths are flushable due to patented technology that allows them to lose strength and break up when moving through the system after flushing.” Their marketing campaigns proudly state “Don’t just wipe … wash with Cottonelle FreshCare Flushable Cleansing Cloths — With a Quick Dry Performance to help you feel confidently clean and dry. “

One question that has yet to be asked; Why not just agree they are not flushable and instruct consumers to put them in the trash? Maybe it is because it makes consumers think about the psychology of flushable wipes. Am I buying flushable wipes because I can flush them? Why am I buying them?

Let us ponder that question.

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