To flush (wet wipes), or not to flush...

The Signal - - BUSINESS - Carl KANOWSKY Carl Kanowsky of Kanowsky & As­so­ciates is an at­tor­ney in the Santa Clarita Val­ley. He may be reached by email at [email protected]­ Mr. Kanowsky’s col­umn rep­re­sents his own views, and not nec­es­sar­ily those of The Sig­nal. Noth­ing con­taine

In a de­po­si­tion con­cern­ing the Mon­ica Lewin­sky scan­dal, Pres­i­dent Bill Clin­ton, re­spond­ing to whether Ms. Lewin­sky’s af­fi­davit was true (the af­fi­davit al­legedly said “there is ab­so­lutely no sex of any kind in any man­ner, shape or form with Pres­i­dent Clin­ton”), tes­ti­fied, “It de­pends on what the mean­ing of the word ‘is’ is.”

Well, re­gard­less of your po­lit­i­cal per­sua­sion, Bill’s never lived that down. Now, ap­par­ently, Kim­berly-Clark gets to live through this same night­mare of its own cre­ation.

Or, as its at­tor­neys might say, “It de­pends on what the mean­ing of the word ‘flush­able’ is.”

You wouldn’t think that how peo­ple han­dle per­sonal hy­giene is­sues in the bath­room would wind up in a busi­ness law col­umn. But how you take care of your busi­ness means big money.

For many, a dis­cus­sion of what product is used to clean up be­gins and ends with toi­let pa­per. Ap­par­ently, there are choices — such as “flush­able wipes,” or what are es­sen­tially baby wipes pre­sented in a dif­fer­ent pack­age for adult ap­pli­ca­tion.

Ac­cord­ing to The At­lantic, the wet-wipe in­dus­try hit its stride in the mid-2000s and, as of 2015, sales had grossed (no pun in­tended) more than $2 bil­lion. And one of the in­dus­try lead­ers is Kim­berly-Clark.

As I un­der­stand it, the at­trac­tion of flush­ables is that you can throw the wipe in the toi­let af­ter us­ing the soft, moist cloth. And that is how they are mar­keted, as be­ing “flush­able.”

But what does “flush­able” mean? This boil­ing con­tro­versy was met head on in the re­cent fed­eral ap­pel­late case, David­son v. Kim­berly-Clark.

Jen­nifer David­son said she paid more money for a pack­age of one of Kim­berly-Clark’s prod­ucts (var­i­ously known as Cot­tonelle Wipes, Scott Wipes, Hug­gies Wipes and Ko­tex Wipes). “Be­liev­ing it would be eas­ier and more san­i­tary to flush wipes than to throw them in the garbage, David­son pur­chased the Scott Wipes.”

Ah, but was it truly flush­able? Yes, that’s the rub.

Why is that im­por­tant? David­son paid more for the Scott Wipes be­cause she be­lieved it was flush­able — she re­lied on the rep­re­sen­ta­tion by Kim­berly-Clark that the wipe would break “up af­ter flush­ing.” If the wipes don’t ac­tu­ally break up, then David­son, as a class rep­re­sen­ta­tive, could sue Kim­berly-Clark on be­half of all of the rest that may have been sim­i­larly duped by the ad­ver­tis­ing.

David­son sued Kim­berly-Clark for fraud, which has high plead­ing re­quire­ments. In other words, sim­ply say­ing that you were de­frauded is not suf­fi­cient. “To prop­erly plead fraud with par­tic­u­lar­ity un­der Rule 9(b), “a plead­ing must iden­tify the who, what, when, where and how of the mis­con­duct charged, as well as what is false or mis­lead­ing about the pur­port­edly fraud­u­lent state­ment, and why it is false.”

She sat­is­fied those re­quire­ments by al­leg­ing that Kim­berly-Clark mis­led its cus­tomers by say­ing the wipes were “flush­able” when in fact they are not. As stated in the com­plaint, “flush­able” “re­quires an item to be ca­pa­ble of dis­pers­ing within a short amount of time.”

In con­trast to truly flush­able or dis­persible prod­ucts, David­son al­leged, Kim­berly-Clark’s flush­able wipes “take hours to be­gin to break down.” Ac­cord­ing to the court’s de­ci­sion, “Nu­mer­ous news stories de­scribe how flush­able wipes have clogged mu­nic­i­pal sewage sys­tems, thereby re­quir­ing costly re­pairs.”

Be­cause the Ninth Cir­cuit Court of Ap­peals sided with David­son, Kim­berly-Clark now must con­front (much like Clin­ton), “It de­pends on what the mean­ing of the word ‘flush­able’ is.”

The les­son to learn? If you’re do­ing busi­ness in Cal­i­for­nia, be a lit­tle cir­cum­spect in how you pro­mote your prod­ucts.

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