Wip­ing out the Com­merce Clause

D.C.’s flush­able wipes bill would pre­vent com­pa­nies from sell­ing their prod­uct across the na­tion

The Washington Times Daily - - OPINION - By Charles A. Roth­feld Charles A. Roth­field, who has ar­gued 31 cases be­fore the U.S. Supreme Court, is a part­ner at Mayer Brown.

“Flush­able wipes” are a small prod­uct. But if not ve­toed by D.C. Mayor Muriel Bowser, a bill just passed by the D.C. City Coun­cil will place those wipes at the cen­ter of a very sig­nif­i­cant law­suit.

The prob­lem is a fa­mil­iar one: A reg­u­la­tion in­spired by the best of in­ten­tions turns out to have, on closer ex­am­i­na­tion, unan­tic­i­pated and de­struc­tive con­se­quences.

Here is the back story. On Tues­day, Dec. 6, the Dis­trict Coun­cil passed a bill that would ban man­u­fac­tur­ers from sell­ing moist bath­room wipes la­beled “flush­able” that do not meet a yet-to-be de­ter­mined D.C. stan­dard of flusha­bil­ity. Used for per­sonal hy­giene, flush­able wipes are de­signed to break apart dur­ing their pas­sage through sewage pipes so that flush­ing them will not clog mu­nic­i­pal sewage sys­tems. They are a fa­mil­iar and pop­u­lar prod­uct; about one in five U.S. house­holds uses them. But if the bill goes into ef­fect, it will ef­fec­tively ban th­ese prod­ucts in the Dis­trict.

Mayor Bowser must de­cide whether to sign the bill into law. She should not: If she does, a court will al­most cer­tainly strike the law down, af­ter what is likely to be lengthy and ex­pen­sive lit­i­ga­tion.

One prob­lem with the bill is that it won’t achieve its goal. The bill’s pro­po­nents claim that “flush­able” wipes are a ma­jor con­trib­u­tor to “fat­bergs,” the alarm­ing la­bel at­tached to ac­cu­mu­la­tions of pa­per, fat and other non­sol­u­ble ma­te­ri­als that have started show­ing up at choke­points in the sew­ers of many cities, in­clud­ing Wash­ing­ton.

But sci­en­tific in­ves­ti­ga­tion says that is not so. Ear­lier this year, an in­de­pen­dent anal­y­sis com­mis­sioned by New York City found that “flush­ables” com­prised only 2 per­cent of the ma­te­ri­als in New York’s sew­ers, a tiny frac­tion of the junk that clogs mu­nic­i­pal pipes. The rest came from other forms of refuse that all of us know should not be put down toi­lets, like pa­per tow­els. A third of that to­tal was made up of wipes cur­rently la­beled “Do Not Flush” be­cause they con­tain plas­tic fil­a­ments. That find­ing con­firms the wipes in­dus­try’s warn­ing that, if de­nied flush­able wipes, many con­sumers will turn to the non­flush­ables as sub­sti­tutes and will flush them any­way, mak­ing the clog prob­lem worse, not bet­ter.

That prac­ti­cal prob­lem is com­pounded by the Dis­trict bill’s vague, D.C.-spe­cific stan­dard. The Fed­eral Trade Com­mis­sion (FTC) has an­nounced a na­tional stan­dard on “flusha­bil­ity” that was en­dorsed this month by U.S. Dis­trict Court Judge Jack B. We­in­stein — one of the fed­eral ju­di­ciary’s most renowned judges. Re­spon­si­ble wipes man­u­fac­tur­ers will com­ply with the FTC stan­dard, or risk fed­eral en­force­ment ac­tion.

But the Dis­trict’s use of a diver­gent stan­dard that dif­fers from the FTC’s ap­proach — and that also may differ from stan­dards adopted by other states that, like the Dis­trict, choose to go their own way on “flusha­bil­ity” — would be prob­lem­atic as a con­sti­tu­tional mat­ter, un­der the U.S. Con­sti­tu­tion’s Com­merce Clause. That is be­cause it is im­pos­si­ble for com­pa­nies that sell their prod­uct na­tion­ally to com­ply with rules that change when state lines are crossed. As Judge We­in­stein ex­plained, “fifty dif­fer­ent state stan­dards are not ac­cept­able tech­no­log­i­cally, con­cep­tu­ally,” and would un­der­mine the “con­sti­tu­tional pol­icy” of “pro­tect­ing this coun­try’s one na­tional mar­ket.”

And that is not the bill’s only con­sti­tu­tional vul­ner­a­bil­ity: A Dis­trict wipes law could run afoul of the U.S. Con­sti­tu­tion in two ad­di­tional ways.

One chal­lenge would arise from the First Amend­ment, which gen­er­ally bars the gov­ern­ment both from re­quir­ing a pro­ducer to say some­thing about its prod­uct that the pro­ducer be­lieves to be false, and pre­vent­ing the pro­ducer (or any­one else) from say­ing some­thing about the prod­uct that they be­lieve to be true.

The wipes bill vi­o­lates both of th­ese ba­sic prin­ci­ples. It pro­hibits man­u­fac­tur­ers from say­ing on their la­bels some­thing that they can show to be true: that the wipes are “flush­able” un­der the FTC stan­dard. And it re­quires those mak­ers to say some­thing that, af­ter years of de­vel­op­ment and test­ing, they be­lieve is false — that the wipes are not safe to flush.

Flush­able wipes may be a small thing in the sweep of hu­man events. To ban or com­pel speech is not.

Mean­while, the Con­sti­tu­tion’s Com­merce Clause long has been un­der­stood to pre­vent city or state gov­ern­ments from reg­u­lat­ing con­duct that takes place in other ju­ris­dic­tions. Yet the wipes bill is de­signed to do ex­actly that, di­rect­ing its man­date ex­clu­sively at wipes man­u­fac­tur­ers — all of which pro­duce and la­bel their prod­uct out­side of the Dis­trict.

Courts re­peat­edly have struck down laws like the D.C. wipes bill. If it goes into ef­fect, the wipes bill likely will be added to that list.

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