The Ninth Circuit Reinstates the Flushable Wipes Case

In 2014, Jennifer Davidson filed suit against Kimberly-Clark because she had purchased and used the company’s Scott wipes, which were described as “flushable” on the packaging.  Ms. Davidson alleged in her suit that the term “flushable” means, to the ordinary consumer, “suitable for disposal down the toilet.”  She noted in her suit that the Kimberly-Clerk wipes were more expensive than the wipes of competitors, which did not have the term “flushable.” She indicated in her claim that she was willing to pay the premium price because of her belief that the wipes were better for the environment. She requested an injunction that would prohibit Kimberly-Clark from using the term “flushable” on its packaging for the wipes and in videos describing the product on its website.

 What was missing from the litigation, and the reason for its dismissal by the federal district court was Ms. Davidson’s failure to allege how she discovered that the wipes were not “flushable.” The court held that she should have to show that she experienced problems with her home plumbing as a result of the use of the wipes.  Davidson v. Kimberly-Clark Corporation, 76 F. Supp. 3d 964 (N.D. Cal. 2014). 

 Ms. Davidson appealed, and the Ninth Circuit held that her case should be reinstated. Davidson v. Kimberly-Clark Corporation, 2017 WL 4700093 (9th Cir. 2017). The court turned to the Merriam-Webster dictionary for a definition of flushable, which was “suitable for disposal by flushing down a toilet.” Water quality professionals were also a definitional resource for the court and define “flushable” as anything that can “disperse within seconds or minutes” of flushing.

Ms.  Davidson established that she used the wipes a few times and noticed that they did not disperse.  Out of concern for the city of San Francisco’s water system and the environment, Ms. Davidson did not purchase the wipes again. She does, however, wish to purchase “truly flushable wipes.”

 Kimberly-Clark defended on the grounds that Ms. Davidson had not experienced any damages as a result of the use of the term “flushable.” The district court had dismissed the case because it found that Ms. Davidson’s general alleged damages of harm to the city water system and the environment were not sufficient to support her suit.  However, the Ninth Circuit held that the economic injury of paying a premium price for the wipes was sufficient economic harm for the suit to go forward.

 Kimberly-Clark also argued that Ms. Davidson lacked standing to bring the suit because she was basing her claim on an inability to buy the wipes in the future due to uncertainty about the “flushable” claim.  In the past, courts have not permitted future harm to be a foundation for false advertising claims. In other words, once a plaintiff knows not to rely on the term, future reliance is not possible.  However, the Ninth Circuit, for the first time, held that prospective economic harm that a plaintiff may experience is sufficient foundation for seeking an injunction:

            We hold that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an “actual and imminent, not conjectural or hypothetical” threat of future harm. Knowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future.

As a result, the great wipe case shall move forward and the term “flushable” will now be used with caution, and, perhaps, clarification on the label, such as “will not harm plumbing” or “safe for use with septic tanks.”

DISCUSSION STARTERS

 If the plaintiff will never buy the product in the future, why does the case move forward?

What advice would you offer manufacturers of wipes based on the decision in the Ninth Circuit?