The U.S. District Court for the District of South Carolina last week denied a motion by major wipes manufacturers and distributers to dismiss a class action lawsuit filed by Charleston (South Carolina) Water Systems that aims to enjoin the companies from labeling wipes as “flushable” that in reality cause significant damage to sewer systems.

As in previous litigation, Costco, CVS, Proctor & Gamble, Target, Walgreens and Wal-Mart argued that CWS could not bring the suit because it could not show that the alleged harms to the sewer system were caused by their products according to a news release from the National Association of Clean Water Agencies. 

The companies also claim that they are not responsible because any alleged harms were caused by consumers flushing wipes, not by the companies themselves. As such, the companies argued that Charleston Water had failed to show legal standing, Charleston Water is being represented in the case by AquaLaw, a NACWA legal affiliate.

Case background

This is the latest development in legal actions involving Charleston Water and wipes makers and sellers. Last April Charleston Water and Kimberly-Clark Corp. reached a settlement in a class-action lawsuit in which the company agreed to make its Cottonelle flushable wipes compliant with wastewater industry flushability standards by May 2022.

The company also agreed to improve the labeling of its wipes containers so that consumers can more readily understand which wipes are and are not safe to flush. The aim is to help set a labeling standard for wipes manufacturers nationally.

At present, the court is considering this settlement and will hold its final fairness hearing on that settlement on Jan. 24, 2022. 

For years wipes flushed down toilets have been a source of maintenance headaches for clean-water agencies, clogging lift station pumps, contributing to sewer blockages, driving up collection system and treatment plant maintenance costs, and subjecting personnel to unpleasant and hazardous work in clearing wipes from pumps and other equipment.

The lawsuit accused the companies of selling wipes that are labeled as flushable but do not break down in the sewer system as rapidly as toilet paper does. Charleston Water provides drinking water to some 450,000 people and wastewater services to about 180,000 residents.

It operates two wastewater treatment plants, 540 miles of gravity sewer, 115 miles of force main, 12 miles of deep sewer tunnels and 209 wastewater pump stations.

Litigation continues

In the latest milestone of the case, the court rejected the companies’ claims, saying the utility had made plausible allegations of harm and was not required at the current point in the litigation to show the “quantitative degree to which each defendant” caused the alleged harms, or that the defendants’ actions alone caused the harms, the press release reported. 

The companies also claimed that Charleston Water should not be allowed to bring products liability claims because utilities are not “users” or “consumers” of wipes products.  

However, applying South Carolina court precedent, the court held that utilities are in fact “users” of wipes because “defendants label their products as flushable with the knowledge – and intent – that consumers rely upon this representation . . . [and] know that when consumers flush these wipes down their toilets and into the sewer . . . [utilities] must handle Defendants’ products.”

The court therefore determined that utilities are potential “primary and direct victims” of the alleged defects in the so-called “flushable” wipes.  

Also of note, in addressing the appropriateness of Charleston Water’s trespass claims, the court determined that the utility made a plausible argument that the companies “know or should have known that their flushable wipes are misleadingly labeled, do not disperse as advertised and enter directly into” the sewer system.

If proven, the court stated, this would “constitute affirmative or willful acts, even if the actual flushing of the wipes is done by third parties.” In light of the ruling, Charleston Water’s litigation against the companies can move forward.