Misleading aerosol claims survive legal challenge

A series of prosecutions brought by Walsall Metropolitan Borough Council alleging that four companies made misleading environmental claims on aerosols has ended in failure. The cases have pointed to an apparent conflict between the inherent uncertainties of environmental science and the provisions of statute law.

The charges were brought by Walsall council in March 1991. They alleged that four firms - Beecham, Boots the Chemist, Colgate-Palmolive and Superdrug Stores - had infringed provisions of the Trade Descriptions Act dealing with the application of misleading product descriptions or the supply of goods bearing such descriptions, or in some cases both.

The charges related to aerosol products such as shaving foam, hair spray and deodorant. The products were labelled "environmentally friendly" on the grounds that they contained no CFC propellant. On some of the products the words encircled or were next to logos depicting a sun and clouds.

Walsall council believed that these claims infringed the Trade Descriptions Act because, while not harmful to the ozone layer, the alternative propellants used - propane, butane and iso-butane - were likely to contribute to ozone pollution in the lower atmosphere.

The council began its investigations in February 1990. By the time charges were laid all four companies had stopped using the claims on new aerosols. However, none withdrew existing stocks from the shops.

The only case which actually went to trial was that involving Beecham. During questioning by the company's counsel, a freelance consulting scientist employed by the council conceded that he could not assert with 100% certainty what precise effects CFCs were having on the ozone layer. He then went on to say that no scientist would ever claim that he could predict with 100% certainty the effects which the hydrocarbon propellants used by the company would have on the lower atmosphere.

The problem which this posed for the council's case was that under the Trade Descriptions Act the burden of proof rests with the prosecution, which must show beyond reasonable doubt that a claim is misleading.

Following an adjournment, Beecham was found not guilty.

In subsequent proceedings against the other three companies which ended on 1 April, the council offered no evidence.

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