A recent announcement by the FTC and a recent decision by the U.S. Supreme Court may threaten to flush wet wipes down the proverbial toilet. The FTC has announced it is has settled charges with wet wipe maker Nice-Pak Products, Inc. that it failed to substantiate its flushable claims as it related to the company’s moist toilet tissue. Additionally, in an unrelated case, the U.S. Supreme Court has refused to hear an appeal, which may pave the way for municipalities to recover damages against flushable wipe manufacturers for damages caused to sewer systems.
As it relates to the FTC settlement, Nice-Pak has agreed to stop advertising moist toilet tissue as flushable unless it can substantiate that the tissue is in fact safe to flush. Likewise, Nice-Pak has agreed to not claim that its moist toilet tissue is safe for sewer and septic tanks unless it has substantiation for those claims. The FTC’s complaint alleged Nice-Pak had violated the FTC Act by misrepresenting that a certain formulation of its wipes: 1) are safe for sewer systems; 2) are safe for septic systems; 3) break apart shortly after being flushed; and 4) are safe to flush. The FTC also alleges Nice-Pak provided the means and instrumentalities for retailers and others that marketed the product under their own label to make similar misrepresentations. The company’s tests did not reflect, real world household plumbing or septic conditions, the FTC alleged.
However, even while Nice-Pak agreed to settle the charges, the company has said the FTC’s recent press release is misleading and outdated. According to a statement released by Nice-Pak, “[a]ll claims related to our current flushable product portfolio are fully substantiated as safe to flush, and the FTC consent agreement does not require any change to our existing products or claims. Nice-Pak entered into a voluntary consent agreement with the FTC regarding certain wipe products labeled as flushable. While the products that were the focus of the FTC’s inquiry at all times were subject to extensive testing on flushability, we are pleased to bring a resolution to this matter in an amicable manner. These products have been discontinued since 2014.” Furthermore, Nice-Pak stated that it remained “committed to providing our customers with industry leading products that meet and exceed industry standards,” and that Nice-Pak would continue [its] leadership position in proactively educating consumers on safe flushable practices, including labeling all of our non-flushable wipes with a prominent ‘Do Not Flush’ logo.” But is the FTC’s settlement just the tip of the iceberg for Nice-Pak’s woes as it relates to their flushable wipes.
While Nice-Pak seems unconcerned about the FTC settlement, the company may want to take notice of a recent U.S. Supreme Court decision not to hear an appeal in an unrelated pharmaceutical case. In that case, a pharmaceutical industry group was challenging a lower court decision allowing Alameda County, California 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. The Supreme Court’s decision may open the floodgates to allow municipalities to bill marketers for damage flushable wipes cause to sewer systems. New York City alone has estimated flushable wipes have caused more than $18 million in added costs over five years, and those hefty bills could easily wipe out profits for an industry with U.S. sales of only $230 million last year.
In addition to the potential damages claims that may result from the Supreme Court’s decision, flushable wipes have already garnered some attention in the courts. That includes a pending federal class action lawsuit filed in 2014 on behalf of 100 people whose plumbing was allegedly damaged by flushable wipes. Then in April 2015, Wyoming, Minn., launched the first municipal lawsuit against wipe marketers claiming damage to its sewer system.
In response to mounting litigation, Dave Rousse, president of INDA, the Association of the Nonwovens Fabrics Industry, has 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. 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.”