Fight Against 'Flushable' Wipes: Steps To Recovering Cost From Manufacturers

By Anthony Garcia, Esq. and Sheldon Primus, PO, MPA, COSS

Flushable wipes and related products have been a blight for wastewater collection systems and utilities in recent years. This problem is widespread throughout small and large systems in the U.S. and around the world. Wipe manufacturers have continued to label products as flushable that do not disperse like toilet paper in the collection system. The associations which represent the flushable wipes manufacturers have created voluntary guidelines to prove flushability, but there are no enforcement efforts against violators. Therefore, many utilities have combined their efforts in the form of a class action suit to hold manufacturers accountable for funds used to remove the wipes in the collection system. This article will outline how a utility can take legal action to recoup losses and fight back against a rogue industry.

The Issue

The flushable wipes manufacturers have been mislabeling nondispersable products as sewer and septic safe for many years. Although there is a voluntary guideline outlining the process to earn a “flushable” label, the products do not break apart like toilet paper. The Association of Nonwoven Fabrics Industry (INDA) released a 3^rd edition of the “Guidelines Document for Assessing the Flushability of Nonwoven Disposable Products” in June 2013 (INDA, 2015). INDA maintains that it has worked with wastewater associations and professionals to develop a definition of flushability.

INDA is a membership association without any sanctioning power for products that continue to use the wording “flushable” or to place a “Do Not Flush” label on non-flushable products. Therefore, the guidance lacks the ‘teeth’ a regulation or lawsuit would have for deterrence to violating a flushable standard. However, the products can be flushed, but they do not break apart or disperse like normal toilet paper. This causes downstream issues for the collection system or the treatment plant.

To obtain a “flushable” designation, the manufacturer must pass a seven-step test;

1. FG501-Toilet and Drain-Line Clearance Test
2. FG502-Slosh Box Disintegration Test
3. FG503-Household Pump Test
4. FG504-Settling Test
5. FG505- Aerobic Biodisintegration/Biodegradation Test
6. FG506- Anaerobic Biodisintegration/Biodegradation Test and
7. FG507- Municipal Sewage Pump Test

The Current State Of Nonwoven Fabrics And Utilities

INDA and members for the wastewater industry have issued an infographic which outlines the constituents that make up the nonwoven material that can be found in a collection system. The percentage is as follows:

• 47 percent non-flushable paper, hand towels, tissues, and napkins
• 18 percent non-flushable baby wipes
• 13 percent non-flushable feminine hygiene products
• 14 percent non-flushable household wipes
• 8 percent flushable wipes

Though only 8 percent are products labelled as “flushable,” it is equally as important to label products that consumer flush as “Do Not Flush.” INDA has logos specifically designed to place on products that fail the flushability test. However, the manufacturers which directly label product as “flushable” are knowingly deceiving customers and creating increased costs for the utilities.

The companies responsible for the manufacturing and advertising of these products insist on the products’ safety and performance, but, after being called into question, have changed warning labels to include such side effects as “property damage.” Subject to multiple lawsuits and investigations due to false flushability claims, manufacturers and retailers are re-thinking how they advertise and market their products. Today, municipalities are spending more and more taxpayer dollars to repair or replace wastewater equipment and unclog screens.

History Of Legal Actions Against Flushable Wipes Manufacturers

Making sense of the recent events related to “flushable” and the law can be tricky. Here’s a nutshell; in 2013 and 2014, several class action suits were filed against The Proctor and Gamble Company in the Eastern District of New York. These suits were filed on behalf of individuals who suffered some form of property damage as a result of their use of flushable. These cases were later consolidated and assigned to Senior United States District Judge Jack B. Weinstien.

In May 2015, the Federal Trade Commission (FTC) and Nice-Pak Products, Inc. entered into a consent agreement related to unsubstantiated representations and unfair/deceptive acts or practices related to products labeled “flushable.” As part of this agreement, the FTC ordered Nice-Pak “not make any representation, in any manner… that the Covered Product is:

• safe for sewer systems,
• b) is safe for septic systems,
• breaks apart shortly after flushing,
• will not clog household plumbing systems,
• will not clog household septic systems,
• is safe for plumbing,
• is safe to flush,
• dissolves or disperses when interacting with water; or
• is flushable

…without supporting reliable and accurate real-life testing” (Complaint, In the Matter of NICE-PAK PRODUCTS, INC., No.132-3272). The Complaint also provided guidance by stating that a “flushable” product, “Disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in household and municipal sewage lines, septic systems, and other standard wastewater equipment” (Id. and Belfiore v. The Proctor and Gamble Company, Case 1:14-cv-01142-JBW-RML, Doc. 180 p. 29).

During 2015, Judge Weinstein heard from several experts on the meaning of flushability, even Nice-Pak’s Vice President for Nonwovens. Essentially, his testimony was that “flushable” is defined “in terms of a consumer’s need, as being able to pass through one’s property, includ[ing] a golf ball” (See Supra, Belfiore p. 27). Clearly, golf balls are not a flushable product, and this “expert” opinion is unrealistic. So, on October 5, 2015 Judge Weinstein stayed the proceedings until the FTC could provide a more reliable and consistent meaning of the term “flushable.”

On October 30, 2015, the aforementioned consent agreement was ‘officially’ adopted and ordered by the FTC. In that Order, the FTC makes some heavy-handed statements regarding misleading advertising and misrepresentations made by advertisers of such products. This Order further adds, “…any tests, analyses, research, studies, or other evidence purporting to substantiate any of the above representations must at least:

• demonstrate that the Covered Product disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems, in household and municipal sewage lines, septic systems, and other standard wastewater equipment; and
• substantially replicate the physical conditions of the environment in which the Covered Product is claimed, directly or indirectly, expressly or by implication, to be properly disposed of; or, if no specific environment is claimed, then in all environments in which the product will likely be disposed of.” Decision and Order, (In the Matter of NICE-PAK PRODUCTS, INC., No.132-3272, DOCKET NO. C-4556

During 2015, municipalities also realized that taxpayer dollars had been spent (in large sums) dealing with increased problems caused by wipes in the water system. On April 23, 2015, the City of Wyoming, MN, filed a putative class action in the District Court of Minnesota against six “leading” manufacturers of “flushable” wipes: Procter & Gamble Co., Kimberly-Clark Corp., Nice-Pak Products, Inc., Professional Disposables International, Inc., Tufco Technologies, Inc., and Rockline Industries, Inc. Alleged are “unfair practices associated with design, testing, manufacturing, distribution, and/or sale of allegedly flushable bathroom wipes.” Civil Cover Sheet, No. 15-CV-2101 (D. Minn. Apr. 23, 2015), ECF No. 1-1.

Your Utility’s Dilemma 

You might ask, does my utility have a problem with “flushable” wipes?  Here are some questions you can ask yourself to help clarify the impact of the issue to your utility:

• Why are we cleaning screens so frequently?
• What material and products are we finding on the bar screens?
• Has there been an increase or decrease in the necessity to clean?
• How much time is spent offline?
• How frequent is the event?
• Is repair or replacement of my equipment becoming more common?
• Have I had to request an upgrade to my equipment?

The answers to these inquiries may help determine if your utility has a “flushable” problem. If you do, what’s your next step? Your utility may wish to retain counsel to assist in gathering all necessary information to make a fully informed decision. Filing a lawsuit is a serious move, so the better the data, the better the chance of success. One should consult with a team well-heeled on the issues, one who has the time and inclination to review historical logs, budget expenditures, and interview wastewater front-line personnel.

Steps To Legal Action

1. Make your problem your best evidence. The most effective way to impact the industry is to prove the products in question are actually responsible for the clogs occurring in your water systems. Saving products found on the screens and preserving them until an expert can examine the product and identify it provides sufficient evidence that “flushable” products have not broken down prior to reaching the screens.
2. Give it a name. It is important to appropriately label all clogs. Until recently, it was customary in the industry to classify clogs as grease clogs. If you find a clog that has “flushable” product in its makeup, name it and save it.
3. Change the future by becoming a historian. Good record-keeping can make the difference between a sound case and a poor one. Keeping accurate records and carefully detailing each cleaning, sanitary sewer overflow (SSO), downed grinder, or busted pump will help better account for the damage “flushable” wipes are actually doing to our water systems.
4. Report your findings and frustration to your director or utility head. He/she should understand the complexity of the problem, the money lost as a result of dealing with it, and the opportunity to recover against those deceptively marketing to consumers.
5. Be on the phone call between your county/municipal representative and chosen counsel. Informed counsel will have questions that only you are equipped to answer. They’ll be glad you joined.

Flushable wipe products are foreign objects to the industry, and acceptable in their current form. The utility will spend more money to treat them, have SSOs that can cause increased pollution, and possibly regulatory agency fines. Our taxpayer budgets should not be used to correct problems that are avoidable and are the result of gross misstatements and deceptive advertisements. We have an opportunity to tell the truth of the trenches and we owe it to our communities to do so. Make it right; fight against flushable wipes.