Flushing the Constitution

Original source: Washington Times

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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.