‘Flushable’ Toilet Paper Challenge Needs Work

SAN FRANCISCO (CN) - A woman making a federal case out of the "flushability" of Kimberly-Clark disposable wipes must amend her consumer fraud claims, a federal judge ruled.

Jennifer Davidson's 2013 class action against Kimberly-Clark and its subsidiaries is underway in the Northern District of California after the manufacturer claimed federal jurisdiction under the Class Action Fairness Act.

Davidson said she bought the Scotts Naturals Flushable Moist Wipes from a San Francisco supermarket based on her belief that they were "specially designed to be suitable for flushing down her toilet without causing problems in her plumbing or at the water treatment plant." She "began to seriously doubt that they were truly flushable," however, after "several uses of the wipes."

Though Davidson stopped using the wipes and did not purchase additional flushable Kimberly-Clark products, she said the company falsely advertises four of its products - including Cottonelle Fresh Care wipes and cleansing cloths, Huggies Pull-Ups Flushable Moist Wipes, U by Kotex Refresh wipes and the aforementioned Scotts product - as flushable, despite causing problems in septic tank and at sewage treatment plants.

In its bid to dismiss the complaint, Kimberly Clark said Davidson's injury is abstract since nothing bad happened to her when she flushed the wipes.

U.S. District Judge Phyllis Hamilton acknowledged Friday, however, that at this stage of the case, Davidson sufficiently pleaded that she paid a premium for the wipes over normal toilet paper on the allegedly false promise that the wipes were indeed flushable.

"Here, plaintiff has not alleged that the Scott Naturals product did not work as promised, or that her own pipes or septic system or her local waste water treatment plant was harmed by her use of the wipes," Hamilton wrote. "Plaintiff has, however, alleged that she suffered economic harm because she would not have paid a premium for the Scott Naturals wipes had defendants not misrepresented the product as 'flushable.' Whether that was in fact a misrepresentation cannot be determined at this stage of the case, but the court finds that plaintiff has satisfied both Article III and statutory standing as to that one product."

Davidson needs to show that she relied on something more than the wipes' packaging to show fraud in advertising, the ruling continues.

"Here, plaintiff does not allege that she saw any of defendants' advertisements or websites - let alone that she relied on them in deciding to make her purchase," Hamilton wrote. "She alleges only that she based her decision to purchase the Scott Naturals wipes on the representation on the package that the wipes were 'flushable.' Thus, as to the element of reliance, plaintiff has not pled facts showing that she relied on any representation except as to the 'flushable' designation on the Scott Naturals packaging. In addition, plaintiff has not alleged facts showing how she came to believe that the Scott Naturals wipes were not 'flushable.' She does not allege that she was unable to flush the product down the toilet, or that the product caused any problems with her pipes, just that after several uses of the wipes she 'began to seriously doubt that they were truly flushable.'"

The judge declined to get involved at this stage with what "flushable" means, whether the wipes should totally disperse by the time they arrive at the sewage-treatment facility, and if Kimberly-Clark should put that the wipes "can be flushed even if not suitable for flushing" on the packaging as Davidson suggested.

"That argument is based on a premise that, if not exactly faulty, is at a minimum unsupported," Hamilton wrote. "Strictly speaking, something is 'flushable' if it is 'able to be flushed.' Plaintiff's argument appears to be that the definition of 'flushable' necessarily includes what happens to the item that is flushed, from the time it is flushed until it reaches its ultimate destination (septic system or waste-water treatment plant). Because of the dispute regarding the definition of 'flushable,' the court is unable to determine whether the 'omissions' claim is or is not viable at this stage of the litigation." (Parentheses in original.)

References that Davidson made to Internet articles and websites discussing the harm caused by flushable wipes to municipal treatment plants must be stricken as well, since Davidson never said she relied on the articles or even read them before deciding to stop using the wipes, the court found.

Davidson has 28 days to fix her complaint, Hamilton concluded.

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