Flushing the Constitution
Washington D.C.’s city government is nationally known for its anti-business bias. A law enacted late last year and scheduled to take effect on New Year’s Day 2018 shows why.
The ordinance regulates the labeling of — hold onto your seat — moist flushable toilet wipes, said to be found in a fifth of American homes. The law effectively bans selling the product within city limits but is so flawed that a national producer — Kimberly-Clark — has sued the city, charging multiple constitutional violations. The courts will likely agree, for its shortcomings are simple and obvious.
The measure bans the word “flushable” from the wipes’ packaging, though numerous tests have shown that they work as advertised. It requires the warning “do not flush” instead. The manufacturer maintains that both requirements violate the First Amendment by restricting commercial speech that they believe is truthful and compelling a statement they believe is not.
The sponsor, Councilwoman Mary Cheh, has dismissed the objection. “We compel speech all the time,” she told an interviewer. But as one critic explained when the council was considering the bill last December, “In commercial speech cases, the U.S. Court of Appeals for the D.C. Circuit (National Association of Manufacturers v. SEC) has been skeptical of laws requiring affirmative statements that are not ‘purely factual and uncontroversial information about the good or service being offered.’ “
Since then, the 9th U.S. Circuit Court of Appeals (American Beverage Association v. City and County of San Francisco) has endorsed this view. In September, it enjoined implementation of a San Francisco ordinance that looks like a copy of the District’s, except that it targets sugary beverages. It held that the ordinance would likely be found unconstitutional after full review. D.C. officials should take note. The 9th Circuit is no conservative jurisdiction. If these rules on commercial speech are off-limits there, chances are they will be off-limits everywhere.
The Kimberly-Clark suit goes on to charge that the wipes regulation creates an effective barrier to interstate commerce, also constitutionally prohibited. And the ambiguity of the city’s law ignores the due process mandate of the Fifth Amendment. A statute must provide a clear statement of what it prohibits.
So why is Washington still pushing forward with its ordinance?
City officials point to the expense of sewer backups. But using their own estimates, cleaning out backups costs less than one hundred-thousandth of the budget of the agency in charge.
And even that comparatively tiny burden cannot explain city officials’ apparent vendetta. By the time Washington acted, New York City had published results from its own independent analysis of materials in its sewer backups. Almost half were from non-flushable (plastic laced) wipes and hygienic products — baby wipes, tampons, cosmetic wipes and counter wipes. The other half were paper towels, paper napkins, newspapers and other products that everyone knows should not go down toilets. Less than 2 percent were fragments of flushable wipes. Removing the product category from store shelves would not relieve D.C. of sewer backups.
Perhaps Washington officials see flushable wipes as an inconsequential self-indulgence. But recently Elizabeth Samson, a New York-based attorney who is also a mother and past caregiver for an elderly relative, argued in a Washington-area publication that flushable wipes labeling “is a women’s health issue.”
Citing doctors in New Jersey, Michigan and California, she reported that, for seniors especially, using the product reduces urinary tract infections and irritable bowel syndrome, both significantly greater problems for elderly women than men. She reported the view of a noted British psychologist that for the incontinent, carrying them when out reduces anxiety about being away from home. “The point is,” Ms. Samson concluded, “that, for certain groups, elderly women in particular, flushable wipes are not a luxury or an indulgence but a necessary tool for fostering independence, improving hygiene, and preserving dignity.”
The only convincing explanation for the Washington law is the City Council’s hostility to business, particularly big corporations. It is as if the Council said, here is a big corporation with a new product; over there is a problem that, against all evidence, someone charges the product caused; so ban it — and scoff at industry pushback. It is an attitude that prevails not just at Washington’s City Hall but in far too many municipal governments, including San Francisco’s.
This hostility to corporations — major contributors to most urban economies — is a much bigger problem for those of us who work and live in those jurisdictions than flushable wipes, which are no problem at all.