Kimberly-Clark Corp. v. Dist. of Columbia

• Decision Date: 22 December 2017
• Docket Number: Civil Action No. 17–1901 (JEB)
• Citation: 286 F.Supp.3d 128
• Court: U.S. District Court — District of Columbia
• Parties: KIMBERLY–CLARK CORPORATION, Plaintiff, v. The DISTRICT OF COLUMBIA, et al., Defendants.

286 F.Supp.3d 128

KIMBERLY–CLARK CORPORATION, Plaintiff,

v.The DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 17–1901 (JEB)

United States District Court, District of Columbia.

Signed December 22, 2017

Christopher A. Eiswerth, Kwaku A. Akowuah, Sidley Austin LLP, Washington, DC, Eamon P. Joyce, Sidley Austin LLP, New York, NY, for Plaintiff.

Conrad Z. Risher, Fernando Amarillas, Gregory Martin Cumming, Office of the Attorney General, Roscoe Conklin Howard, Jr., Barnes & Thornburg LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Lurking beneath this city's streets lies a purported scourge of our sewer system: nonwoven disposable wipes.While unwitting consumers might blithely flush baby or facial wipes down the toilet, little do they know, those wipes may bind together in the subterranean realm, creating plumbing clogs of substantial proportions.And when they do, DefendantsDistrict of Columbia and the D.C. Water & Sewer Authority must clean up the mess.The District has thus understandably embarked on a "Protect Your Pipes" campaign, encouraging consumers to rethink their flushing habits.The question in this case is how far it can go in enlisting wipes manufacturers to help fight that battle.

Specifically, the city recently enacted a law that limits when a manufacturer can market its wipes as flushable.The Act includes a three-part standard for "flushability"; if a company's wipes flunk that test, it must clearly and conspicuously label that the product "should not be flushed."D.C. Law 21–220 § 3(b).The problem?PlaintiffKimberly–Clark Corporation has allegedly engineered certain of its wipes to be flushable and currently markets them as such.It fears the Act may compel it to say otherwise and has moved for a preliminary injunction to prevent enforcement thereof.Because the Court agrees that the Act likely treads impermissibly on Plaintiff's First Amendment rights, it will grant the injunction.As the District is still in the process of promulgating regulations to implement the Act, the Court will subsequently reassess whether the injunction remains appropriate once those regulations become final.

I.Background

A.The Nonwoven Disposable Products Act

On March 24, 2017, the District of Columbia enacted the Nonwoven Disposable Products Act of 2016.The Act targeted a hobgoblin of D.C. pipes—viz. , nonwoven disposable wipes, which include "wet wipes used for personal hygiene, baby wipes, facial tissues ...."District Opp., Exh. B, Committee Report, Bill 21–833(Nov. 7, 2016)at 2.These wipes "are popular for both child and adult use" and, when flushed, "cause serious problems in the [District's] sewer system."Id.The Committee Report, in fact, estimated that D.C. Water "pays approximately $50,000 each year to combat issues caused by wipes," and that "[c]logs also pose risks for utility workers, who can suffer physical injuries when cutting and pulling wipes out of mechanical equipment and illness due to exposure to raw sewage."Id.

The Act addressed two types of products plaguing the District's sewers.First, it set its sights on wipes that were never intended to be flushable.As Kimberly–Clark agrees, "[M]any adult customers were using—and then flushing" these wipes, which "were not designed for flushing [and] were not labeled safe for flushing."ECF No. 15 (Memorandum for PI Mot.)at 3.The wipes, which Plaintiff describe[s] as "indestructible squares of plastic,""can increase the incidence of plumbing clogs."Id.Although some manufacturers labeled that their products "should not be flushed," the District determined that "there [was] no standard way to communicate this message across the industry."Committee Reportat 3.The D.C. Council also heard testimony that manufacturers often obfuscated labels advising consumers not to flush their products.SeeDistrict Opp., Exh. A, Hearing Record(October 24, 2016)at 14.As an example, one witness presented baby wipes whose "do not flush" label appeared in small print on the back of the package and was partially obscured by a flap.Id.The District sought to impose new guidelines on those manufacturers, compelling them to label their products "clearly and conspicuously."D.C. Law 21–220 § 3(b).

Second, the city targeted "flushable" wipes, or those that are ostensibly "designed to pass safely through household plumbing and municipal wastewater systems."PI Memo.at 3.These products, which constitute about 7% of wipes on the market, are currently labeled and marketed to consumers as "flushable."Committee Reportat 2;see alsoHearing Recordat 9.Despite the reassuring labels, the District worried that " 'flushable' wipes are contributing to clogs in U.S. sewer systems."

Committee Reportat 3.Although estimates vary as to the toll that these items take on plumbing, testing in other municipalities shows that a "non-negligible amount of material recovered from sewage systems consisted of flushable wipes."Id.To wit, wipes labeled as flushable compose an estimated 2% to 8% of the debris in water systems; at the extreme, one study found that they made up 35% of total wipes in the pipes.Id.To the District, "any wipe labeled 'flushable' that can be found in a clog after going through the sewer system is inaccurately labeled."Committee Reportat 6.

As to this second category, therefore, the District sought to provide more rigorous standards regarding flushability.Before the legislation, there was little consensus over the term "flushable."For example, an industry trade association, the International Nonwovens and Disposables Association(INDA), promulgated voluntary guidelines, which required a product to pass seven different tests before being labeled "flushable."Hearing Recordat 10.Yet the Council also heard testimony from the National Association of Clean Water Agencies(NACWA), an organization representing 300 public wastewater utilities, that INDA's guidance was inadequate.Id. at 13.NACWA promotes the use of a more stringent three-part test, which would require flushable wipes to: 1) break into small pieces quickly; 2) not be buoyant; and 3) not contain plastic or regenerated cellulose and only contain material that will readily degrade in a range of natural environments.Id.According to NACWA, other countries adhere to these guidelines, but current U.S. products fall far short of its standards.Id. at 16.In a field test, only one product marketed as flushable (a Kimberly–Clark wipe, as it happens) met NACWA's guidelines.Id.

After evaluating testimony on those competing standards, the District ultimately hewed closely to NACWA's approach.The final Act defined "flushable" as a nonwoven disposable product that: (1)"[d]isperses in a short period of time after flushing in the low-force conditions of a sewer system"; (2)"[i]s not buoyant"; and 3) "[d]oes not contain plastic or any other material that does not readily degrade in a range of natural environments."D.C. Law 21–220 § 2(1).It then prohibited "a manufacturer of a nonwoven disposable product for sale in the District [from] label[ing] the nonwoven disposable product as safe to flush, safe for sewer systems, or safe for septic systems," unless its product met the District's definition of flushable.Id., § 3(a).The Act also required manufacturers of products that are "not flushable [to] clearly and conspicuously label the ... product to communicate that [it] should not be flushed."Id., § 3(b).

The Act empowers the Mayor to "impose civil fines and penalties as sanctions for violations of [its] provisions."Id., § 4(a).It also authorized the Department of Energy & Environment to issue rules implementing the terms of the Act, in consultation with D.C. Water.Id., § 5.Although the Act goes into effect on January 1, 2018, DOEE has not yet promulgated regulations for its implementation, seeECF No. 34(Stipulation by District Defendants), which task is expected to take at least a few more months.SeeDistrict Opp., Exh. D (Declaration of Marc A. Nielson), ¶¶ 4–10(describing DOEE's regulatory process).Notably, the Act punishes only manufacturers, regardless of their location in or outside of the city, but not any retailer who sells the wipes in the District.

B.Procedural History

Kimberly–Clark is a multinational corporation that creates products for personal care and hygiene.Its brands include such familiar names as Cottonelle®, Scott®, Huggies®, and Kleenex®.SeeCompl., ¶ 5.Over the past twenty years, it has allegedly invested "millions of dollars" in engineering flushable nonwoven wipes and now has more than 30 patents for such products.Id., ¶ 44.These wipes, it says, are unique: "Unlike baby wipes, which are made from plastics or other synthetic fibers, Kimberly–Clark's wipes are made only from wood pulp—the same substance that is the primary ingredient in toilet tissue."PI Memo.at 4(citing Compl., ¶ 45).It also uses sodium chloride (i.e. , salt) to bind the wood pulp together.Id.It markets those of its wipes using that technology as "flushable," in accordance with INDA's guidelines on the term.Id., ¶¶ 48–50.Plaintiff manufactures all of its wipes outside the District and then sells them to middlemen, who in turn sell them to retailers located in the city.SeeCompl., ¶¶ 37–38.

On September 15, 2017, Kimberly–Clark filed a Complaint seeking injunctive and declaratory relief to prevent Defendants from enforcing the Nonwoven Disposable Products Act.Id., ¶ 1.Shortly thereafter, it also moved for a preliminary injunction on the same ground.The Court held several conference calls with the parties to assess whether the District might stay enforcement of the Act pending the issuance of its regulations.When this effort bore no fruit, the Court held oral argument on the PI Motion on December 13, 2017, and this Opinion follows on an expedited basis.

As a preliminary matter, the Court briefly addresses whether all Defendants...