U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Court Clears the Way for Flushable Wipes Case

When you put something down the toilet, you expect that to be the end of it.

But one action typically leads to another. In a case over flushable wipes, an allegation without damages led to a dismissal.

Jennifer Davidson sued Kimberly-Clark over its wipes, but a federal court of appeals reversed the decision against her. That's right, the trial court had flushed her case.

"Flushable"

In Davidson v. Kimberly-Clark Corporation, Davidson alleged that she went to a Safeway store in San Francisco and bought some "flushable" Scott Wipes. But they did not perform as expected when she tried them out at home.

She investigated and learned that flushable wipes could damage home plumbing and municipal sewers. And she wasn't the only one who had issues with flushable wipes.

In Washington, D.C., for example, the city enacted a law regulating when wipes could be labeled "flushable." Kimberly-Clark sued to preserve its right to market the products as "flushable."

Meanwhile, Davidson sued in California. In the class action, she accused the company of false advertising.

Economic Injury

Davidson did not allege damage to her plumbing or sewage system, which led the trial judge to dismiss her case. However, the Ninth Circuit said she did not have to claim such damages.

"Under California law, the economic injury of paying a premium for a falsely advertised product is sufficient harm to maintain a cause of action," Judge Mary Murguia wrote for the panel.

In its decision, the panel resolved a split among federal courts within the Ninth Circuit over whether consumers previously deceived by a false advertisement can seek injunctive relief under California law.

The appeals court sent the case back down -- no pun attempted -- to the trial judge for further proceedings.

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