By: Rachel Ann Stephens, Staff Writer<\/p>\n\n\n\n
I. Introduction<\/p>\n\n\n\n
Going to the bathroom has never been more perilous, for sewer systems. Systems already under pressure from growing populations, aging infrastructure, and climate change have a new villain in the form of \u201cflushable\u201d<\/a> wipes. Places including New York<\/a>, London<\/a>, San Francisco<\/a>, and Toronto<\/a> have been feeling the effects of wipe use. In an effort to protect its sewers, Washington D.C. sought to enact the Nonwoven Disposable Products Act. <\/a>The Act would have limited the sale of flushable wipes and put in place labeling requirements. However, before the law took effect on January 1, 2017, Kimberly-Clark<\/a>, the producer of such products, brought an action<\/a> against the city to prevent the Act\u2019s enforcement. In finding for Kimberly-Clark, the DC District Court held the law imposed an unconstitutional limit on free speech under the First Amendment<\/a>. The ruling in Kimberly-Clark v. DC<\/a><\/em> is an example of the two ways courts show deference to commercial speech rights: (1) application of a higher standard of review and (2) a minimization of government interests. <\/p>\n\n\n\n II. Case Summary<\/p>\n\n\n\n The provision at issue prohibited the sale of \u201cnonwoven disposable products\u201d that were labeled safe to flush unless they passed the flushable definition contained in the statute. It also required that products that were not safe for flushing be \u201cconspicuously\u201d labeled. At the outset, both parties agreed that the labeling dispute qualified as commercial speech under Central Hudson<\/a><\/em>. In evaluating the regulation, Kimberly-Clark advocated for an application of the four-part Central Hudson <\/em>test, while the District championed an application of Zauderer<\/em> that evaluated disclosure requirements.<\/p>\n\n\n\n Zauderer<\/a> <\/em>holds \u201cthe First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.\u201d The court reasoned that when regarding \u201cpurely factual and uncontroversial information\u201d the speaker\u2019s interest in disclosures is \u201cminimal<\/a>\u201d. As such, the court has determined the rights of the speaker are protected so long as \u201cdisclosure requirements are reasonably related to the State\u2019s interest in preventing deception of customers.\u201d Compared to Central Hudson,<\/em> this is a \u201crelaxed standard of review<\/a>. The court began with the caveat \u201c[n]obody knows exactly\u201d what falls under this designation, but stated that there must be \u201cno dispute of factual accuracy\u201d and is controversial if it is \u201cinflammatory.\u201d<\/p>\n\n\n\n Here, the district court found the categorization of nonwoven products as unflushable were not \u201cuncontroversial\u201d and thus foreclosed the application of Zauderer <\/em>and its relaxed standard. In making this decision the court cited that Kimberly-Clark<\/em> themselves vehemently disagree with the conclusion that the wipes are not flushable, and thus cuts against a finding of no controversy. The court pointed to competing definitions of \u201cflushable\u201d by industry organizations such as, the Association of the Nonwoven Fabrics Industry (INDA<\/a>) and National Association for Clean Water Agency (NACWA<\/a>), to support Kimberly-Clark<\/em>\u2019s claim. The court also discusses how other federal circuits have found disclosure requirements that \u201cpromote policies or views that are . . . expressly contrary to the corporation\u2019s views\u201d<\/a> to be invalid. The court applied intermediate scrutiny and the Central Hudson<\/em> test to the regulation. <\/p>\n\n\n\n Under Central Hudson, <\/em>the government must show: \u201c1) a substantial interest that 2) its restriction directly and material advances and 3) that the regulation is not \u2018more extensive than is necessary to serve that interest.\u2019\u201d The court had no difficulty ruling against the government on all three parts. First, the court concluded the $500,000 estimated damage did not reach the \u201csubstantial interest requirement\u201d when compared to the overall $535.8 million budget. Second, it concluded that DC failed to factually support the assertion that a limitation on wipes would save the sewer systems. Finally, the court found that no matter the conclusions to the first two Central Hudson<\/em> prongs, the regulation itself was not narrowly tailored. The court criticized the process of the District in creating the regulation in that they \u201cgave little thought to whether it needed that disclosure requirement in the first place\u201d. Taken together, the court found the regulation failed the Central Hudson <\/em>test and therefore was unconstitutional under intermediate scrutiny. <\/p>\n\n\n\n III. Implications<\/p>\n\n\n\n This case serves as a prime example of increased deference to commercial speech protections, both in reluctance to apply a more relaxed standard and a discounting of government interests. Commercial speech doctrine has been criticized for being vague and undefinable<\/a>, and its squishy nature has led to differing application by courts. Here, the court elevated the standard of review based on the finding that the regulation was not \u201cpurely factual and noncontroversial\u201d pointing to the controversy of the plaintiff itself. This creates a self-defeating rationale, a relaxed standard will be used if there is no controversy, but controversy can be found if there is a plaintiff that \u201cvehemently\u201d disagrees. <\/p>\n\n\n\n Further, under the heightened standard, the court found the District lacked evidence to support the claim the wipes contributed to the damage. The court found it easy to discount arguments that in other context have merited sufficient weight in other states. For example, cases in New York<\/a> and Minnesota<\/a> where there was sufficient evidence of this damage in pleadings to continue with a claim. In its evaluation of Central Hudson<\/em>,the court also easily discounted the regulation because it found that the District of Columbia council did not \u201cgive thought\u201d to whether the regulation was needed in the first place. Despite stating in the case that \u201cordinarily, the \u2018preferred remedy\u2019 for potentially misleading speech is \u2018more disclosure, rather than less,\u2019\u201d and government need not choose the least restrictive means, but only the \u201creasonable fit\u201d the court finds the disclosure requirement for wipes abhorrent. <\/p>\n\n\n\n This case illustrates how the DC Court has used the mystifying standard of commercial speech to heighten protections for commercial speakers, and in this case, continue the tirade of sewer clogs caused by flushable wipes. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Rachel Ann Stephens, Staff Writer I. Introduction Going to the bathroom has never been more perilous, for sewer systems. Systems already under pressure from growing populations, aging infrastructure, and climate change have a new villain in the form of \u201cflushable\u201d wipes. Places including New York, London, San Francisco, and Toronto have been feeling the …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2375,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[53,68,69,78],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2374"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2374"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2374\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2375"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2374"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2374"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2374"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}