WASHINGTON, D.C. (From news reports) -- A new D.C. law that regulates when disposable wipes can be labeled "flushable" has been temporarily halted by a federal judge, at least as it applies to a single manufacturer's products, after finding it likely "treads impermissibly" on that company's First Amendment rights.

The law, slated to take effect Jan. 1, defines a flushable wipe as one that disperses in a short period of time after flushing, is not buoyant, and does not contain plastic or any other material that does not readily degrade. It prevents manufacturers from labeling their product as "flushable" unless it meets those requirements, and it requires manufacturers of nonflushable wipes to communicate that "clearly and conspicuously."

In a 30-page decision issued Dec. 22 granting Kimberly-Clark Corp.'s requested preliminary injunction, U.S. District Court Judge James Boasberg wrote that D.C. has "understandably" embarked on a campaign to address this "purported scourge of our sewer system: nonwoven disposable wipes." However, Boasberg wrote, the District does not appear to have considered alternative, less-restrictive statutory language (a disclaimer rather than a ban, say), which the city should have done given that the meaning of "flushable" is so disputed -- and a "one-track mind is fatal."

The District prefers a rigorous "flushable" standard as defined by the National Association of Clean Water Agencies, while Dallas-based Kimberly-Clark says its wipes meet a standard crafted by the International Nonwovens and Disposables Association, a trade group.

"While the District is free to pick sides in that battle," Boasberg wrote, "it cannot force Kimberly-Clark to be the messenger for its position, at least without surviving intermediate scrutiny."

As an analogy, Boasberg turned to the Twinkie.

"It is true that the FDA, for instance, could require Hostess to disclose the calorie count of Twinkies, even if the company's marketing arm might prefer otherwise," the judge wrote. "But it cannot require that company to tell consumers its sugary treat 'should not be eaten' nor ban it from labeling that product 'edible.'"

A Kimberly-Clark spokesperson said the company does not comment on ongoing litigation, but added that it is pleased with the decision.

D.C. Councilwoman Mary Cheh, D-Ward 3, who sponsored the flushable wipe bill, described the ruling as "pretty disappointing but quite limited. That's the bright side of it." A constitutional law professor, Cheh did take issue with what she described as the "heart of the ruling," that the government has to "give in" to a standard crafted by a trade group on its members' behalf.

"What the industry is saying in its essence," Cheh said, "is 'We the industry have developed our own standard, and we say, at least Kimberly-Clark says: This product is flushable.'"

But the District government, Cheh added, borrowed its standard from the very water and sewer authorities that are spending thousands of dollars to clean up the mess that wipes make of sewer systems.

"I don't know why we should give equal weight to what the company is saying," the councilwoman said.

Boasberg heard oral arguments on Dec. 13 and issued his ruling less than 10 days later, essentially to prevent Kimberly-Clark from facing retroactive liability for continuing to manufacture its wipes after Jan. 1. Kimberly-Clark is the corporate behemoth behind brands such as Cottonelle, Scott, Huggies and Kleenex.

The injunction, which could be lifted or made permanent when the District finally issues rules to implement the new law, only applies to Kimberly-Clark's "flushable" wipes. The city may "continue to regulate other wipes, such as baby wipes, which disintegrate less readily," the judge wrote.

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