"Banning flushable wipes won't eliminate the demand for moist bottom cleansers. Instead, some wipers will switch to non-degradable wipes which could get flushed, further feeding the sludge beast beneath Washington's streets."
Why is the DC Council trying to flush freedom down the toilet?
Constitutional liberties do not come under fire only from Washington — or rather, here in the nation's capital, the federal government isn't the only threat. The Council of the District of Columbia is about to declare its disdain for established rights, intruding into the inner sanctum of your home: The loo.
The council is considering a ban on the sale and advertising of — don't laugh — "flushable moist wipes." You, gentle reader, may not see a use for this supplement to ordinary toilet paper, but more than 20 percent of American households do. Users range from parents potty training toddlers to the elderly, whose continence may not be what once was.
Led by Ward 3 Councilmember Mary Cheh, Washington's city council is preparing to ban the product and all advertising of it citywide. These purportedly "flushable" wipes, the lawmakers charge, do not actually break apart in sewage systems. Critics blame them for a plague of gargantuan paper-like blobs, some weighing a ton, that have clogged sewers from London to New York to Sydney.
Tests have shown the blame is misplaced. New York City recently conducted an independent analysis of what was accumulating in its sewers. City officials found that at most two percent of the muck came from flushable wipes. The other 98 percent consisted of non-flushable items: Plastic-embedded non-flushable baby wipes, other products with plastic filaments, heavy paper towels and trash. In contrast, flushable wipes contain no plastic. They are made of the same raw material as toilet paper: Biodegradable cellulose.
Banning flushable wipes won't eliminate the demand for moist bottom cleansers. Instead, some wipers will switch to non-degradable wipes which could get flushed, further feeding the sludge beast beneath Washington's streets.
The wet-wipe-banners are also treating the Constitution as something to be soiled and discarded.
Start with the First Amendment, specifically freedom of speech. The council would prohibit flushable products from being advertised as flushable, even though New York's independent test has shown that the proposition behind the ban (that the wipes are not flushable) is false. In other words, the D.C. Council would ban truthful commercial speech. The Supreme Court held in 1980 case (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York) that restrictions on commercial speech must directly advance a legitimate government interest and be no more extensive than necessary to serve that interest.
The D.C. bill also requires labeling these flushable products "Do Not Flush" and including a "Do Not Flush" icon. In effect, the bill would require not a warning but speech comparable to government-sided advocacy with which reasonable parties disagree.
Such a law would be constitutionally suspect. 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."
The wipe ban also offends the "dormant commerce clause," which prohibits state and local laws that would regulate commerce outside the state. The bill's regulation of the advertising and labeling of a nationally distributed product alone strongly suggests that D.C.'s city council is trying to police conduct everywhere, not merely within the district's borders.
Finally, the council is disregarding due process, which requires (among other things) that a statute provide fair notice of what it prohibits, which is a much higher bar when the legislation would inhibit speech. The council's proposed definition of "flushable" turns on un-enacted regulations and an undefined interim standard that differs from those long used by industry, the Federal Trade Commission and consumers. If nothing else, the bill is, in the language of constitutional law, "void for vagueness."
The bill lacks any rational basis because it does not attack the problem: People flushing non-flushable wipes. It tramples a number of constitutional protections: Free speech, bans on local interference with interstate commerce and due process.
Councilwoman Cheh, the chief wipe-banner, is also a constitutional law professor at the George Washington University. Hopefully, she will understand the bill's many constitutional infirmities and send this rule down the drain.
J. Gregory Sidak is a lawyer, economist and chairman of Criterion Economics. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.