"Flushable" Is "A Pretty Basic Concept," Judge Tells P&G

Home Goods and Services Greenwashing

Law360
Dorothy Atkins
Jul 20, 2017

A California federal judge appeared open Thursday to certifying a class of Procter & Gamble Co. consumers in their suit alleging the company falsely advertises its bathroom wipes as being flushable, rejecting P&G's argument that "flushable" is open to different interpretations and noting that it's a "pretty basic concept."

During a hearing on a motion for class certification, P&G's attorney Emily Johnson Henn of Covington & Burling LLP argued that different consumers have different interpretations of the word flushable and those interpretations aren't common enough for class certification. But U.S. District Judge Richard Seeborg disagreed.

"In these cases, I always want to tell the defendants, 'You put this term on this product. You put it on there, so you think it means something,'" the judge said. "And I have to say there's a pretty basic concept that [flushable] connotes."

The fight for certification is the latest happening in a putative class action lead plaintiff Jamie Pettit launched on behalf of consumers in April 2015. Pettit alleged that the wipes, which degrade slowly, have forced municipalities throughout California to spend millions of dollars to fix problems created by the so-called flushable wipes that aren't actually suitable for flushing.

During the hearing Thursday, Pettit's attorney Adam J. Gutride of Gutride Safier LLP argued that an overwhelming percentage of consumers are likely to be misled by the labels, according to a marketing study. As further support, he also pointed to a New York federal judge's February decision to certify a class of consumers who were allegedly exposed to similar misrepresentations on P&G's labels and purchased the same mislabeled product.

But Henn argued that Pettit hasn't submitted admissible evidence about what consumers think flushable means, and Pettit hasn't shown evidence that the products damage plumbing systems.

The judge responded that he doesn't think the consumers have drastically different interpretations of the word flushable, which would require the class to be broken into disparate groups, and both parties appeared to be overthinking how consumers view the term.

"In some ways, both sides are expecting an average consumer to have a level of thought about this product that is somewhat unrealistic," the judge said.

Judge Seeborg took the arguments under submission, but he said he thinks the case will rise and fall on whether or not the consumers can show that the product successfully gets through the plumbing system.

Pettit was represented by Adam J. Gutride of Gutride Safier LLP.

Procter & Gamble was represented by Emily Johnson Henn of Covington & Burling LLP.

The case is Pettit v. Procter & Gamble Co., case number 3:15-cv-02150, in the U.S. District Court for the Northern District of California.

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