SAN FRANCISCO (CN) - A federal judge flushed a consumer fraud class action over the "flushability" of Kimberly-Clark disposable wipes, finding the lead plaintiff didn't show that the products clogged plumbing or damaged sewer treatment plants.
Jennifer Davidson claimed in her 2013 class action against Kimberly-Clark and its subsidiaries that 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.
Davidson survived Kimberly-Clark's first bid to dismiss the action, although U.S. District Judge Phyllis Hamilton advised her to show that she relied on something more than the wipes' packaging to make her fraud-in-advertising case, and declined to get involved in whether "flushable" means that the wipes must necessarily break down before arriving at a wastewater treatment plant.
After allowing Davidson to amend her complaint, Hamilton dismissed the action in full last week. In addition to finding that Davidson lacked standing to force Kimberly-Clark to remove the "flushable" label from the products - since she admitted that she would never purchase the products again - Hamilton said Davidson still hadn't shown how the wipes can't be flushed down the toilet.
"Having personally experienced no problems with her plumbing on account of her use of the Scott Naturals wipes or any of the products at issue, plaintiff must point to some other specific facts showing that the designation 'flushable' is false. Plaintiff has failed to do this," Hamilton wrote. "She cites to articles on the Internet that discuss problems with clogs and blockages at wastewater treatment plants in various locations in the United States, but those problems appear to have had a number of causes - including people flushing 'nonflushable' wipes or other 'nonflushable' materials down the toilet."
News stories cited by Davidson that detailed plumbing clogs and treatment plant problems involved the wipes' interaction with all manner of refuse consumers flush but shouldn't, like diapers, rags, towels, hair, cigarette butts, kitty litter and doggy waste bags, Hamilton said.
The fact that the wipes never damaged Davidson's - or San Francisco's - systems doomed the case in the end.
"The first amended complaint fails to state a claim for relief that is plausible on its face," Hamilton wrote. "Because plaintiff was previously been given leave to amend to correct the deficiencies in the complaint and failed to do so, the court finds that further leave to amend would be futile."