Clean Water Current

The U.S. District Court for the District of South Carolina this week denied a motion by major wipes manufacturers and distributers to dismiss NACWA member Charleston Water Systems’ (CWS) class action lawsuit seeking to enjoin the companies from labeling as “flushable” wipes products that in fact cause significant damage to sewer systems. CWS is being represented by NACWA Legal Affiliate AquaLaw in the case.

As they have done in previous litigation, Costco, CVS, Proctor & Gamble, Target, Walgreens, and Wal-Mart argued that CWS could not bring the suit because it could not show that the alleged harms to the sewer system were caused by their products, and because any alleged harms were caused by consumers flushing wipes, not by the companies. As such, the companies argued that CWS had failed to show legal standing. 

The court, however, flatly rejected these claims, stating that CWS had made plausible allegations of harm and, contrary to the defendants’ assertions, was not required at this point in the litigation to show the “quantitative degree to which each defendant” caused the alleged harms, or that the defendants’ actions alone caused the harms. 

The companies also claimed that CWS should not be allowed to bring products liability claims because utilities are not “users” or “consumers” of wipes products pursuant to state law.  But, applying South Carolina court precedent, the court held that utilities are in fact “users” of wipes because “defendants label their products as flushable with the knowledge – and intent – that consumers rely upon this representation…[and] know that when consumers flush these wipes down their toilets and into the sewer…[utilities] must handle Defendants’ products.” The court therefore determined that utilities are potential “primary and direct victims” of the alleged defects in the so-called “flushable” wipes.  

Also of note, in addressing the appropriateness of CWS’ trespass claims, the court determined that CWS made a plausible argument that the companies “know or should have known that their flushable wipes are misleadingly labeled, do not disperse as advertised, and enter directly into” the sewer system, which, if proven, the court stated would “constitute affirmative or willful acts, even if the actual flushing of the wipes is done by third parties.”  In light of the ruling, CWS’ litigation against the companies can now move forward. 

Separately, the court is considering a proposed settlement agreement between CWS and one of the original defendants – major U.S. wipes manufacturer Kimberly-Clark – which would in part require Kimberly-Clark to bring its Cottonelle Flushable Wipes products into compliance with the flushability standards developed by international municipal wastewater associations including NACWA, and to change its labeling practices for certain other non-flushable wipes.  The court will hold its final fairness hearing on that settlement on Jan. 24, 2022. 

NACWA will continue to keep members apprised of important developments in the ongoing litigation and settlement actions.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.