October 8, 2021 – Flushable Wipes Settlement with Kimberly-Clark Approved
Preliminary approval has been granted to a settlement between Charleston, South Carolina’s water system and Kimberly-Clark Corp., the maker of “flushable” wipes the city alleged have damaged sewer systems nationwide.
In a 14-page order submitted on October 4, United States District Judge Richard Mark Gergelsigned off onthe plaintiff’s motion to approve the deal with Kimberly-Clark Corp., finding that the settlement “was the result of a fair process” and months of extensive communication between the parties. The deal does not absolve any of Kimberly-Clark’s co-defendants in the case.
Pursuant to the settlement, Kimberly-Clark has agreed to alter certain flushable wipes products, engage in “confirmatory” performance testing, revise labels to prominently indicate which products should not be flushed and conduct public outreach about flushable and non-flushable wipes. The injunctive relief also includes Kimberly-Clark’s commitment to meeting International Water Services Flushability Group specifications for its flushable wipes, the filing says.
Those covered by the settlement include all entities nationwide who own and/or operate sewage or wastewater conveyance and treatment systems, including municipalities, authorities and wastewater districts, whose systems were in operation between January 6, 2018 and October 4, 2021.
The filing states that Kimberly-Clark’s co-defendants, Costco, CVS, Proctor & Gamble, Target, Walgreens and Walmart, voiced their opposition to the deal in a document attached to Charleston’s April 2021 motion for preliminary approval. The court overruled the companies’ objections to the settlement and attempts to dismiss the case given Charleston’s amended class action “contains allegations of actual harm occurring through the present which Plaintiff attributes to the individual named Defendants.”
Notice of the settlementis expected to be mailed directly to more than 17,000 publicly owned sewage treatment plant operators, while roughly 23 national and local water organizations are expected to receive notice via email. A settlement website is also expected to be established.
Charleston, South Carolina’s public works commissioners have filed a proposed class action over Costco, CVS, Walmart and other major retailers’ sale of wipes described as “flushable,” alleging the products have “wreak[ed] havoc on sewers and sewage treatment facilities worldwide.”
The plaintiff, who provides public water and wastewater services to the Greater Charleston area, alleges the purportedly safe and/or biodegradable flushable wipes sold by the who’s-who of defendants are to blame for “countless” sewer line clogs and extensive property and environmental damage.
While toilet paper has historically been considered the “benchmark for flushability” in that it begins to break apart upon contact with water—and therefore can pass through sewer and septic systems without issue—so-called flushable wipes, on the other hand,do not perform as advertised, the 61-page lawsuit claims.
“As a result, they do not disintegrate as effectively as toilet paper and can comingle to cause clogs and treatment problems, making them costly and difficult to manually remove,” the case, filed in South Carolina federal court, says. “Flushable wipes should not be labeled as ‘flushable’ or safe for sewer or septic systems.”
Notwithstanding the myriad problems associated with flushable wipes, the defendants—Costco Wholesale Corporation, CVS Health Corporation, Kimberly-Clark Corporation, The Procter & Gamble Company, Target Corporation, Walgreens Boots Alliance and Walmart—continue to “push a contradictory message,” namely that the products are safe to be flushed down the toilet, the lawsuit alleges.
“Despite knowledge of the massive damage and costs caused by Flushable Wipes, Defendants continue to falsely market, advertise, label, and/or sell Flushable Wipes as suitable for flushing, intending for consumers to use the product accordingly and for the product to continue to enter Plaintiff’s and other STP Operators’ sewer and septic systems,” the complaint says.
Without the defendants’ “actions and marketing tactics,” flushable wipes would not be as big of a problem as they have become, the case asserts, arguing that proposed class members—entities that own and/or operate sewage or wastewater conveyance and treatment systems—will continue to face damage to pump stations, lift stations, sewer lines and/or wastewater treatment plants as long as the retailers continue to claim the wipes are “flushable.”
“Flushable Wipes will continue to create excessive maintenance and repair-related expenses borne by STP operators, and ultimately, the public,” the case stresses. “Wet wipes are costing an estimated ‘billions of dollars a year in worldwide maintenance’ and there is no end in sight.”
At least two of the retailer defendants told Law360 in respective statements that the flushable wipes found on store shelves work as represented.
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