Could FTC and Supreme Court Send Flushable Wipes Down the Toilet?

Wipe Marketers Could Also Get Bills for Sewer Clogs

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Thames Water, where the fatberg lived, wants place in Twictionary.
Thames Water, where the fatberg lived, wants place in Twictionary.

Flushable wipes have been blamed for one of social media's most disgusting phenomena – the 15-ton "fatberg" of kitchen grease and wet wipes that took six months to fully dislodge from a sewer system outside London in 2013. Now, recent actions by the Federal Trade Commission and U.S. Supreme Court could really send the business down the toilet in the U.S.

The FTC last week announced a consent agreement with Nice-Pak, maker of private-label flushable wipes for Costco, Target, CVS and BJ's Wholesale Club, to no longer market wipes as flushable without proof they'll "disperse in a sufficiently short amount of time after flushing" to prevent damage to plumbing, septic systems, sewer pipes or wastewater treatment systems.

"This is the first case we brought in this area," said FTC spokesman Mitchell Katz, who likened it to other actions around the commission's Green Guides on environmental claims. "I can't say if it will be the last."

He noted the London fatberg, adding: "The worst part is it cost consumers hundreds of thousands of dollars."

A Nice-Pak spokesman said in an email that the FTC agreement won't change its marketing at all, because it had already discontinued the product covered by the deal and has tests to substantiate its current wipes as safe to flush.

Supreme twist

Then the Supreme Court on Tuesday added another twist by refusing to hear an appeal from a pharmaceutical industry group of a lower-court decision allowing Alameda County, Calif., to make drug marketers pay for a drug-return program meant to keep prescription drugs out of the hands of recreational users -- and also out of the local water supply.

That may open the door for municipalities to bill marketers for damage flushable wipes cause to sewer systems, said Rob Villee, executive director of the Plainfield Area Regional Sewerage Authority in New Jersey. Cities in drought-plagued, cash-strapped California may be particularly eager to try, he said. And considering New York City alone has estimated flushable wipes have caused more than $18 million in added costs over five years, those bills could easily wipe out profits for an industry with U.S. sales that Euromonitor data suggests had retail sales of only $230 million last year.

Already, flushable wipes are gathering a small fatberg of litigation. That includes a pending federal class-action lawsuit filed last year on behalf of 100 people whose plumbing was allegedly damaged by flushable wipes. In April, Wyoming, Minn., launched the first municipal lawsuit against wipe marketers claiming damage to its sewer system.

Unsatisfied with marketers' tests, Mr. Villee has run his own, last year showing Costco wipes didn't break down even after three hours in water, though Kimberly-Clark Corp.'s Cottonelle wipes dissolved after 20 minutes. He said he's since found "a lot of variability" in Kimberly-Clark wipes, and Charmin Freshmates that took over three hours to dissolve.

A P&G spokeswoman said in an e-mail that Mr. Villee's methodology should be checked and that Charmin wipes meet or exceed industry standards for flushability.

"For years, K-C has done extensive testing in its labs and in real sewers," on its Cottonelle, Scott Naturals, Pull-Ups, and U by Kotex flushable wipes, said a Kimberly-Clark spokesman in an e-mail. Those tests show the products exceed industry guidelines for flushability.

Dave Rousse, president of INDA, the Association of the Nonwovens Fabrics Industry, said flushable wipes get an unfair rap. They account for under 10% and "closer to 5%" of all wipes on the market, and a similar share of what INDA has pulled off screens of sewer systems in its own "forensic analyses."

Half of what INDA has plucked from sewers are paper towels, most of the rest being baby wipes, facial cleaning wipes or hard-surface cleaning wipes -- none of which are marketed as flushable. He said the industry is working hard to improve labeling and consumer education on combat this.

New materials for flushable wipes due to hit market soon break down much faster, Mr. Rousse said. And Mr. Villee, who's booked to visit P&G's "flushability lab" in Cincinnati soon, agreed, citing products he's seen from Japan, Europe and the U.S.

INDA is also working with the American Public Works Association and other groups to develop new, stricter guidelines due by July 2016 for wipes to be labeled "flushable."

Regardless, the FTC has put marketers on notice that "flushable" doesn't just mean something goes down the toilet, said David Mallen, a former National Advertising Division staff attorney now in private practice with Loeb & Loeb in New York.

"What's important is whether it dissolves," he said. "The FTC wants competent and reliable scientific testing that has to correspond with what can be expected in the field."

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