Wiping out the Commerce Clause

Original source: http://www.washingtontimes.com/news/2016/dec/14/wiping-out-the-commerce-clause/

D.C.’s flushable wipes bill would prevent companies from selling their product across the nation

By Charles A. Rothfeld - - Wednesday, December 14, 2016

ANALYSIS/OPINION:

“Flushable wipes” are a small product. But if not vetoed by D.C. Mayor Muriel Bowser, a bill just passed by the D.C. City Council will place those wipes at the center of a very significant lawsuit.

The problem is a familiar one: A regulation inspired by the best of intentions turns out to have, on closer examination, unanticipated and destructive consequences.

Here is the back story. On Tuesday, Dec. 6, the District Council passed a bill that would ban manufacturers from selling moist bathroom wipes labeled “flushable” that do not meet a yet-to-be determined D.C. standard of flushability. Used for personal hygiene, flushable wipes are designed to break apart during their passage through sewage pipes so that flushing them will not clog municipal sewage systems. They are a familiar and popular product; about one in five U.S. households uses them. But if the bill goes into effect, it will effectively ban these products in the District.

Mayor Bowser must decide whether to sign the bill into law. She should not: If she does, a court will almost certainly strike the law down, after what is likely to be lengthy and expensive litigation.

One problem with the bill is that it won’t achieve its goal. The bill’s proponents claim that “flushable” wipes are a major contributor to “fatbergs,” the alarming label attached to accumulations of paper, fat and other nonsoluble materials that have started showing up at chokepoints in the sewers of many cities, including Washington.

But scientific investigation says that is not so. Earlier this year, an independent analysis commissioned by New York City found that “flushables” comprised only 2 percent of the materials in New York’s sewers, a tiny fraction of the junk that clogs municipal pipes. The rest came from other forms of refuse that all of us know should not be put down toilets, like paper towels. A third of that total was made up of wipes currently labeled “Do Not Flush” because they contain plastic filaments. That finding confirms the wipes industry’s warning that, if denied flushable wipes, many consumers will turn to the nonflushables as substitutes and will flush them anyway, making the clog problem worse, not better.

That practical problem is compounded by the District bill’s vague, D.C.-specific standard. The Federal Trade Commission (FTC) has announced a national standard on “flushability” that was endorsed this month by U.S. District Court Judge Jack B. Weinstein — one of the federal judiciary’s most renowned judges. Responsible wipes manufacturers will comply with the FTC standard, or risk federal enforcement action.

But the District’s use of a divergent standard that differs from the FTC’s approach — and that also may differ from standards adopted by other states that, like the District, choose to go their own way on “flushability” — would be problematic as a constitutional matter, under the U.S. Constitution’s Commerce Clause. That is because it is impossible for companies that sell their product nationally to comply with rules that change when state lines are crossed. As Judge Weinstein explained, “fifty different state standards are not acceptable technologically, conceptually,” and would undermine the “constitutional policy” of “protecting this country’s one national market.”

And that is not the bill’s only constitutional vulnerability: A District wipes law could run afoul of the U.S. Constitution in two additional ways.

One challenge would arise from the First Amendment, which generally bars the government both from requiring a producer to say something about its product that the producer believes to be false, and preventing the producer (or anyone else) from saying something about the product that they believe to be true.

The wipes bill violates both of these basic principles. It prohibits manufacturers from saying on their labels something that they can show to be true: that the wipes are “flushable” under the FTC standard. And it requires those makers to say something that, after years of development and testing, they believe is false — that the wipes are not safe to flush.

Flushable wipes may be a small thing in the sweep of human events. To ban or compel speech is not.

Meanwhile, the Constitution’s Commerce Clause long has been understood to prevent city or state governments from regulating conduct that takes place in other jurisdictions. Yet the wipes bill is designed to do exactly that, directing its mandate exclusively at wipes manufacturers — all of which produce and label their product outside of the District.

Courts repeatedly have struck down laws like the D.C. wipes bill. If it goes into effect, the wipes bill likely will be added to that list.

• Charles A. Rothfield, who has argued 31 cases before the U.S. Supreme Court, is a partner at Mayer Brown.