A judge with the federal District of Columbia (DC) District Court granted a Motion for Preliminary Injunction filed by the Kimberly-Clark Corporation to prohibit implementation of the District’s wipes labeling law, the Nonwoven Disposable Products Act of 2016. The preliminary injunction applies only “to wipes that Kimberly-Clark engineered and believes to be flushable.” The court determined that the law likely violates Kimberly-Clark’s first amendment rights, since the definition of “flushable” is subject to debate and DC has not considered less restrictive alternatives and whether they would be sufficient.
The court did suggest that the labeling requirements of the Act could be modified to be more factual, rather than a simple “Do not flush” instruction, which would make them less susceptible to First Amendment challenge. The court also acknowledged that DC’s current rulemaking process to implement the Act could allow tailoring of the Act’s requirements in a way that would not violate Kimberly-Clark’s First Amendment rights. Although the Act was set to go into effect on January 1, the accompanying regulations have not yet been published.
NACWA and the Water Environment Federation (WEF) filed an amicus brief on November 13 to support the Act. For more details on the litigation, see NACWA’s Litigation Tracking web page.