Wiped Out

Wastewater systems nationwide have for some time been urging people not to flush anything except human waste and toilet paper down the toilet to avoid clogs that damage sewer lines. Kimberly-Clark and other manufacturers, however, market some of their moistened wipes as "flushable," a claim that has given rise to litigation from consumers as well as consternation from local governments. Last year, DC adopted a law establishing a standard of "flushability" and prohibiting manufacturers of wipes from calling them "flushable" if they don't meet that standard. Just before Christmas, however, Judge James Boasberg of the U.S. District Court for the District of Columbia issued a preliminary injunction preventing enforcement of the law against Kimberly-Clark's "flushable" wipes, on the ground that the company had shown a likelihood that the law violated the First Amendment.

Judge Boasberg's order focused on a provision in the law requiring manufacturers whose wipes don't meet the standard to label them with a statement that they "should not be flushed." That statement, he concluded, was a controversial statement of opinion rather than fact, and thus not subject to the very relaxed constitutional scrutiny applied to commercial-speech disclosure requirements. The prohibition on labeling noncompliant wipes "flushable," he went on, was just the flip-side of the statement of opinion. And neither requirement, he concluded, could be salvaged by the District's adoption of an objective standard of "flushability" because a "statutory definition [can] not save a disputed term." Finally, applying "intermediate" First Amendment scrutiny to the law, Judge Boasberg found that the company was likely to succeed in establishing that the law was not narrowly tailored because the District had not considered alternatives that might be equally effective in meeting its objectives of protecting its sewer lines.

The decision is only a preliminary injunction, and Judge Boasberg stressed that regulations implementing the law might ultimately avoid First Amendment problems by providing for a disclosure that would be more narrowly factual in character. (For example, a requirement that a manufacturer disclose that the product did not meet DC's standard, without requiring expression of the "should not be flushed" conclusion.) Still, some of the order's reasoning is troubling, particularly the suggestion that the government may not establish a standard for employing some term and then preclude a product that does not meet the standard from using it. For example, the FDA generally prevents food manufacturers from calling their products "low fat" if they contain more than three grams of fat per serving. Under the opinion's reasoning, a manufacturer that held a different "opinion" about what level of fat is low might argue that the FDA's definition can't "salvage" its prohibition on the manufacturer's expression of opinion.

It's doubtful that this opinion will be the last word on the issue, either from the district court or from higher courts, but the case definitely bears watching.

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