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 o 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? Because Jennifer 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 Jennifer, as a class representative, could sue Kimberly-Clark on behalf of all of the rest that may have been similarly duped by the advertising.
Jennifer 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, KimberlyClark’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 Jennifer, 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.
Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Mr. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice. ©