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Judge won't flush suit against Stop & Shop over moistened wipes

A federal judge ruled today that a Beverly man can go to trial in his lawsuit against Stop & Shop for selling flushable wipes that may not actually be flushable.

US District Court Judge Indira Talwani said Mark Schotte had advanced enough evidence that the supermarket chain needs to be held to account to warrant making his case to a jury.

Stop & Shop argued that Schotte's complaint, in which he is seeking to become lead plaintiff in a class-action lawsuit, failed to prove that studies showing many flushable wipes in fact could clog pipes if they were actually flushed did not specifically list their products and that, in any case, any idiot could see from the packaging that their wipes were not, in fact, flushable.

Talwani, however, wiped up those arguments.

[A]though the cited articles do not pertain to the brands of wipes at issue here, on a full factual record, it is plausible that Plaintiff could show the Wipes behave like those referenced in the Complaint.

In other words, a jury can hear the case and make up its own mind.

And, she continued, the tiny "†" that would lead a consumer from the large "flushable" on the front of the Stop & Shop packages to tiny type on the bottom or back of them that says, in considerable detail that the the wipes might not be flushable in all circumstances is hardly the "clear cross-symbol" that would quickly clear up any confusion about the word "flushable" that the chain seems to think it is.

[A] factfinder here 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. Accordingly, despite Stop & Shop’s disclaimers on the packaging for the wipes, Plaintiff’s Complaint states a plausible deceptive act.

And is there a dispute over just what "flushable" means? If so, she cited a 2021 ruling by the US Court of Appeals for the First Circuit in Boston on a similar topic (whether "hazelnut-creme coffee" actually had to have hazelnut in it to deserve the name):

[T]he First Circuit has recognized that whether 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." (finding that plaintiff plausibly stated a 93A claim where “Hazelnut Crème” and “Freshly Ground 100% Arabica
Coffee” were displayed on the front label of a coffee containing no actual hazelnut). As such, Plaintiff has plausibly alleged that Stop & Shop engaged in deceptive acts or practices for the purpose of bringing a Chapter 93A claim.

Talwani also rejected Stop & Shop's claim that Schotte had not proven any economic harm from the wipes he purchased at his local supermarket. She said he had shown he paid a premium to buy the moistened wipes over boring old dry toilet paper.

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Comments

They are nasty stuff if you have a septic system

ed: clarified

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21

Every one of these articles is in tune with what the post you responded to was saying.

At least if you read it as two sentences, not one.

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10

From your first link:


Please do not use flushable wipes and flush them down your toilet if your home is on a septic system.

but people are reading the first comment in different ways.

("Flushable wipes -- aren't." vs. "Flushable wipes aren't nasty stuff for...")

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13

Schotte Schitt Shakedown

Marketers need to be held accountable for specious claims, and fine-print disclaimers shouldn't suffice to cover their *sses.

But consumers also bear some responsibility for protecting themselves. Everywhere you look there's a commercial for a dietary supplement or a memory booster with a miniscule warning that the claims haven't been evaluated or verified by the FDA, yet vulnerable people throw millions at these hucksters. Of course, it would be nice if the FDA *did* evaluate and ban the fraudulent elixirs, but unbridled capitalism must prevail.

Anyway, if these wipes aren't flushable, I hope this suit will force Stop & Shop to clean up their...act.

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29

I don't understand why federal/state/local governments haven't already banned these things. Fatbergs are a problem all over the place.

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17

With running a dedicated NG line to my outdoor bbq - worth every penny times 100.

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14

just don't scarf the edibles and confuse the two

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14

The only things I would ever flush would be the normal bathroom things. I don't believe anything else is really "flushable," unless "flushable" means that you CAN flush it, not that you SHOULD flush it!

what happens after they’re flushed is the issue. Will they clog the sewer pipes? Will the vlog your septic system?
You can flush Matchbox cars down your toilet. That makes them flushable.

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Sigh. Dammit! Been going on for ages between you two!!! If you don't stop I'm going to send you both on time out, bed without dinner, and no allowance!!!

Go ahead applaud., Stop & Shop will pass this cost on to us.

Otherwise they might become angry and raise prices! We must let them do whatever they want.

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11

If these are not meant to be flushed; why sue the grocer that sells them? Shouldn't the action be made to the manufacturer that claims they are flushable¥?

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One of the products portrays Stop & Shop as the manufacturer (white labeling).

"Do not put anything in the toilet unless you have eaten it first"

You can get one here

Or does that go in the trash can? (Or maybe they have a bidet...)

Single ply, usually. So yes, the sign isn't quite right, but it makes its point.
If there's one thing an owner hates to do, it's fixing a stuck toilet.

It sounds like Stop and Shop's argument is that the average person would see something labeled as "flushable," somehow know that the product wasn't flushable, and buy it anyway.

If the company really thought that, they wouldn't have put "flushable" in much larger letters than the footnoted "maybe not," let alone the invisible-ink "only an idiot would believe these are flushable." They could have just labeled the product as "moistened wipes."