Can a Disclaimer Explain What You Mean by "Flushable"?

Stop & Shop sells wipes that it advertises as “flushable.”  The issue with flushable wipes is that they're just not always flushable, either because your septic system can't handle them or for a variety of other reasons.  For quite some time now, advertisers have struggled with how to advertise this “increasingly popular alternative to toilet paper” as flushable without potentially misleading consumers about the fact that they're not right for everyone.  (For example, check out our prior blog posts on Dude Wipes, Scott Flushable Cleaning Cloths, and Charmin Freshmates.)

To further complicate things, the law also isn't a model of clarity or consistency on what types of disclaimers are effective on packaging.  It doesn't seem all that likely that many of the disclaimers that advertisers are using on packaging – particularly on the back of packaging – are going to satisfy the Federal Trade Commission's new take on the “clear and conspicuous” standard, which requires disclosures to be “difficult to miss."  Courts, on the other hand, sometimes find disclaimers on the pack of the packaging to be effective, while other times they find that they're not likely to be effective. 

So, does a recent lawsuit against Stop & Shop about its own “flushable” claims clear things up? 

On the front of its packaging, Stop & Shop prominently promoted its wipes as “flushable."  Immediately after the use of the term, the company included a “dagger” symbol, along with the text “For flushing see [back or bottom] panel.”  Then on the back or bottom panel (depending on the product), Stop & Shop included detailed information about the fact that the product is not always flushable, including a warning that, “Not all systems can accept flushable wipes.  Ignoring Disposal Instructions may lead to clogs, property damage, or regulatory violations.”  

A plaintiff sued, alleging false advertising and other claims under Massachusetts law.  In order to demonstrate that packaging is deceptive, the plaintiff must show that:  (1) there was a representation, practice, or omission “likely to mislead consumers"; (2) consumers are interpreting the message reasonably under the circumstances; and (3) the misleading effects are material – meaning that it's likely to ”affect consumers' conduct or decision with regard to a product."  Here, the plaintiff alleged that the “flushable” claim was misleading because the Stop & Shop wipes are not flushable as advertised, since they don't “break apart or disperse in a reasonable period of time after flushing, resulting in clogs or other sewer damage.”  

What's most interesting in this case is that Shop & Shop argued that its use of the dagger, the qualifying text, and the disclaimer cured any potential confusion about whether the wipes were flushable.  The company argued that the plaintiff's allegations “of what a reasonable consumer would notice or expect is speculative and conclusory, and completely negated by the ‘clear cross-symbol that directly follows the word flushable' and the ‘clear and obvious disposal instructions’ on the packaging."  

The court didn't think so, however.  As the court explained, “In order to change the apparent meaning of the claims and leave an accurate impression, however, disclaimers or qualifications must be sufficiently prominent and unambiguous.  Anything less is only likely to cause confusion by creating contradictory double meanings.”  The court concluded, therefore, that 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.”   The court also thought that there was a question about whether, even if consumers did see the disclaimer, they would know enough to interpret the detailed information that was provided.  

Although this case is still in the preliminary stages, there are some useful take-aways here. 

First, don't assume that your disclaimers on the back of the packaging are going to clear up potential ambiguities about the claims on the front of your packaging.  If you have room to qualify the claims in close proximity to your claim, and on the same panel, you're certainly better off doing that. 

Second, if you're going to include explanatory information on a different panel (hoping that it's going to be effective), then don't just rely on an asterisk or a symbol to direct people to it.  Instead, include some language that lets people know that there's important information somewhere else.  But, just as importantly, make sure that this language explains to consumers, very clearly, why they need to look at that other panel.  The court may have felt differently about this case if instead of just saying “for flushing” on the front, Stop & Shop had more clearly communicated on the front that the product was not flushable everywhere.    

And, finally, if you're going to include qualifying language, make sure that it's clear and unambiguous enough so that consumers will understand it and be able to act on it.  It's also important to ask – as the court does here – whether the disclaimers are something that consumers will ever be able to understand at all.  

Schotte v. The Stop & Shop Supermarket Company, LLC, No. 1:23-cv-10897-IT (E.D. Ma.  March 22, 2024).