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Kimberly-Clark Corp. v. District of Columbia

United States District Court, District of Columbia

December 22, 2017

THE DISTRICT OF COLUMBIA, et al., Defendants.


          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, Defendants District 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? Plaintiff Kimberly-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 Report at 3. The D.C. Council also heard testimony that manufacturers often obfuscated labels advising consumers not to flush their products. See District 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 Report at 2; see also Hearing Record at 9. Despite the reassuring labels, the District worried that “‘flushable' wipes are contributing to clogs in U.S. sewer systems.” Committee Report at 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 Report at 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 Assocation (INDA), promulgated voluntary guidelines, which required a product to pass seven different tests before being labeled “flushable.” Hearing Record at 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, see ECF No. 34 (Stipulation by District Defendants), which task is expected to take at least a few more months. See District 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®. See Compl., ¶ 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. See Compl., ¶¶ 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 are properly before it. The Complaint names the District and various city personnel in their official capacities as Defendants, including Mayor Muriel Bowser, Attorney General Karl A. Racine, and DOEE Director Tommy Wells. It also tacks on a more curious party, D.C. Water, which has no authority to implement, enforce, or rescind the Act. Although it is not clear whether this entity belongs in such a suit, no motion to dismiss has been filed. The Court, for the timing being, thus treats the PI Motion as brought against all named Defendants.

         II. Legal Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” League of Women Voters of United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing America's Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)).

         Before the Supreme Court's decision in Winter, courts weighed these factors on a “sliding scale, ” allowing “an unusually strong showing on one of the factors” to overcome a weaker showing on another. Davis v. PGBC, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009); see Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit has hinted, though not held, that Winter should be read to abandon the slide-scale analysis, in favor of a “more demanding burden” requiring plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)); see League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter).

         Regardless of the extent to which showings of irreparable harm and success on the merits can be diminished, some fundamentals of the four-factor test bear reiterating. Because “the basis of injunctive relief in the federal courts has always been irreparable harm, ” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006), a plaintiff must, at minimum, “demonstrate that irreparable injury is likely in the absence of an injunction, ” not just that injury is a “possibility.” Winter, 555 U.S. at 21; see Davis, 571 F.3d at 1292. Before and after Winter, similarly, courts in our Circuit have held that a failure to show a likelihood of success on the merits alone is sufficient to defeat the motion. Ark. Dairy Co-op Ass'n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009) (citing Apotex, Inc. v. FDA, 449 F.3d 1249, 1253-54 (D.C. Cir. 2006)). A plaintiff's showing of likelihood of success and irreparable harm does not end the inquiry; rather, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Davis, 571 F.3d at 1292.

         III. Analysis

         Kimberly-Clark raises a slew of constitutional challenges to the Act, including violations of the Commerce Clause, the First Amendment, and the Fifth Amendment's Due Process Clause. See Compl., ¶ 2. Before delving into the merits, the Court must take a brief detour to consider - and reject - Defendants' threshold positions that the company lacks standing and that its suit is not ripe for review. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998) (“Article III jurisdiction is always an antecedent question.”).

         A. Justiciability

         1. Standing

         While the District does not dispute Plaintiff's standing to challenge the Act, D.C. Water questions whether Kimberly-Clark will suffer any injury-in-fact. It argues that because the parties do not yet know whether the Act applies to Kimberly-Clark, the company lacks standing unless it “assume[s] that its wipes cannot pass any future standard the regulations might set.” D.C. Water Br. at 21. The Court can dispose of that argument quickly. In a pre-enforcement suit, “a plaintiff satisfies the injury-in-fact requirement, ” and thus has standing, “where [it] alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). This forgiving standard is satisfied so long as the plaintiff's “intended future conduct is arguably . . . proscribed by [the] statute [it] wish[es] to challenge.” Id. at 2344 (alterations in original) (internal quotation marks omitted).

         Such is plainly the case here. The Act exists for the specific purpose of targeting products, like Kimberly-Clark's wipes, that are “labeled ‘flushable.'” Comm. Report at 2. By its terms, the Act regulates “a product constructed from nonwoven sheets, including moist toilet tissue or cloth, that is designed, marketed, or commonly used for personal hygiene purposes.” D.C. Law 21-220 § 2(3). No one disputes that Kimberly-Clark's wipes qualify. Although it is not yet clear whether those wipes will meet the District's definition of “flushable, ” it is at least “arguable” that they will not, given that the city adopted more stringent standards than industry guidelines (and it is fair to assume that the regulations will map onto the statute in this respect). See Susan B. Anthony List, 134 S.Ct. at 2344. In fact, the Council heard testimony that the Act would likely preclude almost all products currently on the U.S. market from being labeled flushable. See Hearing Record at 13 (noting that “[w]ith one possible exception, the so-called flushable wipes currently on the market in the U.S.” did not pass NACWA tests for flushability); see also id. at 55 (“Wipes are now marketed and sold as ‘flushable[, ]' [but] most wipes are not dispersible.”). That “credible threat” of civil liability suffices to establish standing. See Susan B. Anthony List, 134 S.Ct. at 2342.

         2. ...

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