disclaimers that require consumers to understand tech, history and law don't avoid lawsuit over "flushable"

Schotte v. Stop & Shop Supermarket Co., 2024 WL 1251284, No. 1:23-cv-10897-IT (D. Mass Mar. 22, 2024)

Stop & Shop allegedly deceptively advertised cleansing wipe products as “flushable” in violation of Mass. Gen. Laws ch. 93A; Schotte also brought warranty, unjust enrichment, and fraud claims. The court declined to dismiss the complaint.

The Stop & Shop Wipes, which vary in fragrance and style, are all marketed and sold with bold, prominent font labeling them as “flushable” on the front of the packaging. Following the word “flushable” on the front of all packaging is a “†”and the text “For flushing see [back or bottom] panel” in smaller print. The back or bottom panel sets forth the following statements in even smaller print:

Independent lab testing shows these wipes meet INDA Flushable Product Guidelines. Not all systems can accept flushable wipes. Ignoring Disposal Instructions may lead to clogs, property damage, or regulatory violations.

DISPOSAL INSTRUCTIONS

Do not flush if:

• Violates local rules.

• Using RV, marine, or aviation system.

• Using macerator toilet or household pump.

• Fat or grease are put in any drain or you are unsure of system capability

Flushing ok if:

• Permitted by local rules.

• One wipe per flush.

• No history of clogs or backups.

• Septic follows EPA schedule for alternative systems (annual inspection & pumping).

If a problem is noticed, dispose of in trash and stop flushing.

The remainder of the disclaimer is concealed by a tab; the concealed portion reads, in part, “not all systems can accept flushable wipes.”

Schotte alleged a “substantial price premium” of at least 25% more for the Wipes as compared to non-flushable wipes from the same brands. Schotte also alleged that the wipes are not in fact flushable because they do not “break apart or disperse in a reasonable period of time after flushing, resulting in clogs or other sewer damage.”

Stop & Shop argued that this couldn’t deceive a reasonable consumer, both because of the disclaimers and because flushable merely means “capable of being flushed down a toilet,” regardless of what happens later on. (That’s not my department!)

“[W]hether a term with multiple, contradictory definitions or interpretations has the capacity to mislead is best left to ‘six jurors, rather than three judges, [to] decide on a full record.’” To avoid a finding of plausible deceptiveness, disclaimers or qualifications must be “sufficiently prominent and unambiguous .... Anything less is only likely to cause confusion by creating contradictory double meanings.” Here, a factfinder

could reasonably find that the disclaimer on the back of the Wipes packaging is neither sufficiently prominent nor unambiguous and, instead, that the small-print lists would not be noticed. And a factfinder could also find that even if the lists were noticed, the disclaimers would require consumers to have in-depth knowledge of the sewer or septic system they are using, its plumbing history, as well as “local rules”—not just for a toilet in their residence or office but any toilet they may wish to dispose of the Wipes in. A reasonable jury could find the disclaimer so small and vague that it does not relieve Defendant of any potential liability for its deceptive acts.

In addition, Schotte alleged that he would be interested in purchasing the wipes again if Stop & Shop ensured they were actually flushable, so he sufficiently pled a likelihood of future injury to establish standing for injunctive and declaratory relief.

Side note: one court has held that “flushable” is not sufficiently factual/uncontroversial to allow legislatively required disclosures under Zauderer. I think that’s definitely wrong, but it’s consistent with a pattern where courts allow themselves—or juries they supervise—to find facts but don’t like legislatures doing so. Both courts and legislatures are governmental regulators, though.