Cottonelle Wipes, made by Kimberly-Clark

A dismissed class action over flushable wipes is alive again after a federal appeals court ruled in a matter of first impression that the plaintiff had standing to pursue injunctive relief in federal court.

The U.S. Court of Appeals for the Ninth Circuit found on Friday that Jennifer Davidson, a consumer of Scott Natural Flushable Moist Wipes, could sue in federal court to force Kimberly-Clark to stop stating that the wipes are flushable. The ruling, which reversed dismissal of the case, resolved a split on the issue in district courts in California, where many consumer statutes include injunctive relief.

“Today, we hold that California consumers who can seek in California state court an order requiring the manufacturer of an allegedly falsely advertised product to cease the false advertising may also seek such an order in federal court,” Mary Murguia wrote, calling it the “most challenging issue in this case.” “Today, we resolve this district court split in favor of plaintiffs seeking injunctive relief.”

The panel also revived the case on the ground that Davidson had made sufficient claims to establish false advertising under California law.

Davidson's attorney, Matt McCrary of San Francisco's Gutride Safier, wrote in an emailed statement: “We are very pleased that the Ninth Circuit revived all the claims against Kimberly Clark regarding its 'flushable' wipes. The court correctly concluded that under California's consumer laws and the U.S. Constitution, a victim of false advertising can sue in federal court to stop deceptive and unlawful business practices.”

A Kimberly-Clark Corp. representative declined to comment. Constantine Trela, head of the Supreme Court and Appellate Practice Group in Chicago at Sidley Austin, who represented Kimberly-Clark, did not respond to a request for comment.

Several class actions nationwide have been brought over flushable wipes not being flushable. One manufacturer, Nice-Pak Products Inc., agreed to stop advertising its wipes as flushable under a deal with the Federal Trade Commission. In 2015, U.S. District Judge Jack Weinstein of the Eastern District of New York addressed a similar issue on standing for injunctive relief, siding with the plaintiff for many of the same reasons that the Ninth Circuit did on Friday.

Davidson originally brought her class action in 2014 in San Francisco Superior Court on behalf of California consumers who purchased four brands of flushable wipes: Scott, Huggies, Kotex and Cottonelle. She alleged the wipes weren't flushable because they didn't disperse in the toilet water right away and, as a result, could clog household pipes or damage sewer systems. She claims she would not have purchased the wipes, which are sold at premium prices, if she had known they weren't flushable.

Kimberly-Clark removed the case, which Phyllis Hamilton, chief judge of the Northern District of California, dismissed in 2014. Among other things, Hamilton found that Davidson hadn't sufficiently alleged that the term “flushable” was false, nor was she injured. Davidson also lacked Article III standing to seek injunctive relief, Hamilton found, because she had no intention of buying the product again.

But the panel found that although the wipes didn't wreak havoc on Davidson's plumbing, she cited news stories and complaints about flushable wipes doing just that. And her economic injuries were sufficient harm for Davidson to pursue false-advertising claims.

In finding Davidson had standing for injunctive relief, the panel acknowledged that federal judges in California had ruled otherwise, such as a 2015 decision by U.S. District Judge James Donato in the Northern District of California, who ended up remanding the injunctive relief claims in a flushable wipes case against Procter & Gamble to San Francisco Superior Court.

The panel found that consumers still have standing to pursue label changes, even if they already know the advertising was false.

Holding otherwise, Murguia wrote, would allow defendants to remove cases involving injunctive relief to federal court, and “California's consumer protection laws would be effectively gutted.”

Cottonelle Wipes, made by Kimberly-Clark

A dismissed class action over flushable wipes is alive again after a federal appeals court ruled in a matter of first impression that the plaintiff had standing to pursue injunctive relief in federal court.

The U.S. Court of Appeals for the Ninth Circuit found on Friday that Jennifer Davidson, a consumer of Scott Natural Flushable Moist Wipes, could sue in federal court to force Kimberly-Clark to stop stating that the wipes are flushable. The ruling, which reversed dismissal of the case, resolved a split on the issue in district courts in California, where many consumer statutes include injunctive relief.

“Today, we hold that California consumers who can seek in California state court an order requiring the manufacturer of an allegedly falsely advertised product to cease the false advertising may also seek such an order in federal court,” Mary Murguia wrote, calling it the “most challenging issue in this case.” “Today, we resolve this district court split in favor of plaintiffs seeking injunctive relief.”

The panel also revived the case on the ground that Davidson had made sufficient claims to establish false advertising under California law.

Davidson's attorney, Matt McCrary of San Francisco's Gutride Safier, wrote in an emailed statement: “We are very pleased that the Ninth Circuit revived all the claims against Kimberly Clark regarding its 'flushable' wipes. The court correctly concluded that under California's consumer laws and the U.S. Constitution, a victim of false advertising can sue in federal court to stop deceptive and unlawful business practices.”

A Kimberly-Clark Corp. representative declined to comment. Constantine Trela, head of the Supreme Court and Appellate Practice Group in Chicago at Sidley Austin, who represented Kimberly-Clark, did not respond to a request for comment.

Several class actions nationwide have been brought over flushable wipes not being flushable. One manufacturer, Nice-Pak Products Inc., agreed to stop advertising its wipes as flushable under a deal with the Federal Trade Commission. In 2015, U.S. District Judge Jack Weinstein of the Eastern District of New York addressed a similar issue on standing for injunctive relief, siding with the plaintiff for many of the same reasons that the Ninth Circuit did on Friday.

Davidson originally brought her class action in 2014 in San Francisco Superior Court on behalf of California consumers who purchased four brands of flushable wipes: Scott, Huggies, Kotex and Cottonelle. She alleged the wipes weren't flushable because they didn't disperse in the toilet water right away and, as a result, could clog household pipes or damage sewer systems. She claims she would not have purchased the wipes, which are sold at premium prices, if she had known they weren't flushable.

Kimberly-Clark removed the case, which Phyllis Hamilton, chief judge of the Northern District of California, dismissed in 2014. Among other things, Hamilton found that Davidson hadn't sufficiently alleged that the term “flushable” was false, nor was she injured. Davidson also lacked Article III standing to seek injunctive relief, Hamilton found, because she had no intention of buying the product again.

But the panel found that although the wipes didn't wreak havoc on Davidson's plumbing, she cited news stories and complaints about flushable wipes doing just that. And her economic injuries were sufficient harm for Davidson to pursue false-advertising claims.

In finding Davidson had standing for injunctive relief, the panel acknowledged that federal judges in California had ruled otherwise, such as a 2015 decision by U.S. District Judge James Donato in the Northern District of California, who ended up remanding the injunctive relief claims in a flushable wipes case against Procter & Gamble to San Francisco Superior Court.

The panel found that consumers still have standing to pursue label changes, even if they already know the advertising was false.

Holding otherwise, Murguia wrote, would allow defendants to remove cases involving injunctive relief to federal court, and “California's consumer protection laws would be effectively gutted.”