I recently joined a group of students from the University of West England – where I lecture in Law – and the Marine Conservation Society in a beach clean at Sand Bay in North Somerset. During the clean, I was appalled by the huge number of blue plastic cotton bud stalks littering the beach, as were the students taking part. These stalks, which are used to hold the buds, are apparently washed down through the sewers: the public, not realising these plastic stalks do not decompose, flush them down the toilet and sewage treatment does not filter them out. The stalks then pollute the beach and interfere with the public’s enjoyment.
Not only are they are visually unpleasant, but if they do fragment the resulting micro-plastics can do harm to marine life. There is an extensive literature documenting these harmful environmental effects (see for example, this recent report) and the threats posed by plastic in our oceans have been written about on Isonomia before, as have the human costs of visual disamenity. Like many, I knew about these problems second hand, but seeing the number of sticks littering the beach really brought the issue home.
The beach at Sand Bay is not particularly unusual in its abundance of cotton bud sticks.Hoping to understand the issue better, I purchased a box of cotton buds from my local chemist. Upon doing so, I noted that on the side of the packaging there is a sign saying: bag it and bin it don’t flush it.
Now, being well versed in the law of the land, it struck me that the inclusion of this instruction might not constitute a fulfilment of the legal obligations of the manufacturer, and that the presence of the multitude of cotton bud sticks on our beaches may well constitute a public nuisance . So, I decided to write to Johnson and Johnson.
I informed them that the baseline legal position (before straying into infringements of various statutes) is covered in the law of public nuisance:
An act that endangers the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all.
Manufacturing products which are harmful in the way outlined above, I informed them, could very easily be a public nuisance. Johnson and Johnson are clearly aware that there is an issue relating to environmental pollution arising from this product, or they would not have put the label on the side of the packaging.
The problem is that people clearly do not read the packaging. I would not have done unless I was specifically minded to do so, as was the case this time, and it doesn’t seem reasonable to expect the general public to do so either. I’m not convinced, therefore, that labelling alone fulfils Johnson and Johnson’s obligations not to cause a public nuisance. There are clear precedents for litigation in cases of environmentally related public nuisance, chief amongst them The claimants appearing on the Register of the Corby Group Litigation v Corby District Council  EWHC 1944 (TCC).
When I had a look at another manufacturer’s cotton buds which my wife had purchased, I found them to have wooden stalks, which would be difficult to flush, and even if flushed would cause less visual disamenity and would be biodegradable. Even better, some brands use sticks made out of compressed paper. So, there are clearly alternative designs available.
The legal issue relating to cotton bud sticks is not one of notification to the consumer, but of design. If Johnson and Johnson are aware of the harm their product is causing, and there are design alternatives, then it seems to me that they have a legal obligation to implement them. This design issue also raises another alarming prospect: if Johnson and Johnson cannot design out the obvious environmental harm caused by this product, what about all their other products?
As I say, I have written to Johnson and Johnson, making them aware of all the points raised in this article. Furthermore, I have informed them that I’d be grateful if they could respond promptly, confirming that they will be using alternatives to plastic for their cotton bud stalks in the near future, in line with public expectations of a company of their stature.
I currently await their reply, and will keep the Isonomia readership informed of progress.