The Precautionary Principle:
Protectionism and Environmental Extremism by Other Means
by Gregory Conko
Director of Food Safety Policy
Competitive Enterprise Institute
Presented to the International Society of Regulatory
Toxicology and Pharmacology workshop on:
The Precautionary Principle June 20, 2002 Arlington, Virginia
Every day, consumers, producers, and regulators confront questions about risk. Even the most commonplace activities, like eating, traveling, and working, are replete with risks. So, in both our personal and professional capacity, we must decide how to proceed with incomplete knowledge about the potential dangers that confront us and what level of caution is appropriate in making those choices.
The question we’re trying to resolve today is: Does the precautionary principle provide a useful tool in resolving those dilemmas? Or, more specifically: How should regulators, acting as society’s surrogate, approach risk in the absence of certainty about the magnitude or likelihood of potential harm?
Although caution is usually warranted, it is not in and of itself a prescriptive concept. We do not forgo eating even though we always run the risk of food poisoning. Nor do we avoid work because we run the risk of occupational injuries. (Of course, being a policy wonk can sometimes seem like avoiding work. But that’s another matter.)
The point is that lots of activities pose some risk of harm, but the choice to forgo them poses its own, greater danger. We can not escape risk. The best we can do is try to choose in a way that is most likely to make our lives, and our communities, safer.
I suggest that the precautionary principle is the wrong approach – that it, in fact, exacerbates one of the major existing problems in risk regulation. I’ll also argue that it is being pursued, not to make the world safer, but rather to advance specific political and philosophical agendas.
Let me begin by noting that there is a lot of disagreement about what exactly the precautionary principle means and what exactly it requires risk managers to do. Generally, though, proponents believe that governments should prohibit or restrict technologies or behaviors when they are suspected of posing some harm to human health or the environment, even if the probability and magnitude of such harm has not been demonstrated scientifically.
Members of this audience should be well aware that all sorts of new technologies and behaviors that are laden with risk, often can be used in a way that confers net benefits: that is, although their use poses some new or unique potential for harm, their use also reduces or replaces enough pre-existing risk that the users – or society as a whole – are made healthier, safer, or in some other way better off.
Risk analysis professionals constantly must ask themselves if restricting a new technology will lower overall risk or trap society in a world that could be made safer by adopting that technology. And, of course, this is not an easy question to resolve, since both potential harms and benefits are typically not well characterized at the outset.
Advocates of the precautionary principle on the other hand, just assume that this dilemma does not exist. In their view, only potential harms are uncertain, so we are rarely put at a disadvantage by passing up the benefits of new technologies. Missing from precautionary calculus is an acknowledgment that, even when technologies introduce new risks, most confer net benefits. What I think most of us really want from public policy, however, is not for it to focus only on the risks generated by new technologies, but rather that it genuinely try to deliver a safer world.
Now, practitioners of the precautionary principle often argue that regulators will carefully weigh “potential benefits and costs.” They try to make it sound as though the precautionary principle is a rational pursuit of overall safety that has a cautionary bit of foresight built into it – that the alternative is just charging ahead with reckless abandon. In this scenario, the precautionary principle is really just another version of the risk versus risk analysis made famous by our keynote speaker, John Graham.
One could make the argument that the plain language of the precautionary principle is open to such an interpretation – and a few scholars have. But that is not how the principle is actually applied in the countries that have formally adopted it. Nor is it how it is interpreted by its primary advocates.
In fact, if the goal of the precautionary principle really was to ensure that regulatory decisions look at both the potential harms and the potential benefits of a product before it’s put on the market, then we wouldn’t need anything more than conventional risk assessment. This whole debate would be moot. After all, the point of risk assessment is to anticipate plausible harms and either prevent or manage them. Andrew Apel has done a fine job of showing why the precautionary principle is not just a form of risk assessment, so I won’t dwell on that point any further.
I do think it’s important, though, to raise the matter of varying interpretations, because the lack of specificity within the precautionary principle gives regulators the freedom to act without an established set of expectations.
This inherent ambiguity practically invites abuse. It can be, and has been, used to justify trade protectionism and environmental technophobia. Those specific goals would be rejected by most consumers if lobbied for directly. But under the guise of defending people and the environment, politically-motivated actors have been able to achieve their dubious objectives by other means. Let me take each of them in turn and provide some examples.
First, protectionism. I think it’s obvious that any arbitrary decision-making process could lend itself to disguising trade protectionism. This is not unique to the precautionary principle. But practitioners, such as those in the European Commission, have tried to inoculate themselves from such charges by arguing that, under their auspices, the precautionary principle will only be used in a manner that is:
- “proportional to the chosen level of protection;”
- “non‑discriminatory” and “least trade restrictive;”
- and further, that decision‑makers would carefully weigh “potential benefits and costs,”
- and that decisions would be “subject to review in the light of new scientific findings.”
In a magazine article published in the Spring of 2000, Health Commissioner David Byrne asked rhetorically, “How could a Commissioner … reject or ignore well‑founded, independent scientific advice in relation to food safety?”
Let me tell you how.
Take a look at the beef hormone case. The European Commission has argued that the precautionary principle permits the restriction on imports of U.S. and Canadian beef from cattle treated with certain growth hormones. But a scientific committee assembled by the World Trade Organization found that justification invalid for a number of reasons, including:
(1) The scientific studies cited by the Commission in its own defense do not indicate a safety problem when the hormones in question are used in accordance with good animal husbandry practices.
(2) EU health officials have expressed no concern about endogenous hormones that occur at higher levels in the un-castrated steers more common in Europe. And
(3) The European Union did not, at the time, ban growth hormones in the pork industry, where many European livestock operations are internationally competitive.
Nevertheless, members of the European Commission still manage to claim with a straight face that its restriction on hormone‑treated beef is not intended to be a trade barrier.
Next, consider the EU’s mandatory labeling of genetically modified foods. The current labeling mandate covers any food or animal feed made from GMOs, where residues of the novel gene or protein can be detected in the final product. In practice, this means that cooking oils from genetically modified corn, soy, or canola are therefore exempt because the heat and friction from the crushing process tends to break apart DNA chains and break down proteins, making it impossible to tell the difference between GM and conventional.
This perfectly reasonable exemption upset the anti-biotech protest industry, so a new labeling mandate has been proposed – and likely will go into effect within a year. It covers all food or animal feed produced from a genetically modified organism – well, almost all of them.
What both the existing rule and the proposed new rule do not cover is foods or feeds that are produced “with” a genetically modified organism. The distinction between “produced from” and “produced with” may not seem obvious to the uninitiated, so let me explain. Specifically exempted are products produced with the aid of genetically modified enzymes – including cheeses produced with the GM clotting agent chymosin, or beers and wines produced with GM yeasts – even though enzyme residues often can be detected in the final product.
Naturally, one is led to wonder how important a principle precaution really is if consumers only need to be alerted to the genetic status of foods that come primarily from other countries. After all, if the precautionary principle just happens to exempt foods from industries where European producers have a competitive advantage, it doesn’t seem like much of a principle.
What is really intriguing, about the GM labeling debate, is that groups like Greenpeace, Friends of the Earth, and others have not found anything wrong with this double standard. But, when we look a little more closely, we find that most environmental groups have their own quirky double standards when it comes to precautionary regulation.
Consider pesticides. Last Friday ( June 14th ) was the 30th Anniversary of the EPA’s ban on DDT, so this example is rather timely. DDT was the original bête noire of the environmental movement, featured prominently in Rachel Carson’s Silent Spring.
Right from the start, let me acknowledge that DDT poses risks to birds and some fishes. But when DDT was introduced as a commercial pesticide in the 1950s, it was a considerably safer technology than the arsenic-based pesticides that it all but replaced. After more than 60 years of testing, DDT has never been shown to pose any real threat to human health. And in the 28 countries around the world where DDT is still used in malaria control, it is an essential compound, saving literally tens of thousands of lives every year.
The same can not be said about either the copper-arsenate pesticide that preceded DDT or the pyrethrins and synthetic pyrethroids that have replaced it. Judged by environmentalist standards, both are hazardous to the environment and to humans. But the environmental movement has based its push for a global DDT ban on the precautionary principle – and strangely has argued that the existence of pyrethroid alternatives make such a ban practical.
But, if the precautionary principle was standard operating procedure in the 1930s when the insecticidal potency of DDT was first really understood, or in the 1940s when DDT was an indispensable tool for the allies during World War II, or in the 1950s when farmers began using it commercially, we’d probably still be stuck with the old copper-and-arsenic-based Bordeaux Mixture for pest control.
I suppose that would suit environmentalists just fine, though. Both copper-arsenate and pyrethrin pesticides are still used to this day in the organic agriculture that precautionary principle advocates hold as the pinnacle of consumer and environmental safety. They remain the darlings of the environmental movement because they are “natural” – mined from the earth in the first case, and refined from flowers in the second.
So, one has to ask, is the precautionary principle really about improving consumer and environmental protection? Or is it about opposing technology and preserving a lifestyle based upon some ideal of communing with nature?
I’ll give just one more example: the environmental movement’s campaign to rid society of chlorinated compounds, which has extended even to opposing the chlorination of drinking water. By the late 1980s, environmental activists were lobbying water authorities around the world, trying to convince them that carcinogenic byproducts of chlorination made drinking water a potential cancer risk.
The Peruvian government saw this as a great way to save money, and it stopped chlorinating much of that country’s drinking water. Greenpeace got what it wanted, but more than 1. 3 million people contracted cholera and at least 11,000 died in one of Latin America’s biggest cholera epidemics – all to save a handful of purely speculative cancer cases.
This highlights, better than most other examples, how ridiculous – in fact, how dangerous – it is to get caught up in the kind of tunnel vision that Supreme Court Justice Stephen Bryer once called “the last 10 percent problem” – that is, pursuing ever smaller risks to the point that we distract consumers and policy-makers from larger and proven threats, divert limited public health resources from genuine and far greater risks, and ignore the fact that new regulations and restrictions could actually make us less safe.
Now, lest I seem to be singling out Europeans, let me note that lots of people have observed that many U.S. laws are also precautionary in nature, and subject to the same criticisms. This is largely true, with a caveat.
Rules in the United States requiring pre-market approval of things like new pharmaceuticals, pesticides, food additives, bioengineered crop plants, industrial chemicals, and many others, do put the burden of demonstrating safety on the producers of new technologies.
Furthermore, they almost invariably weigh the potential risks of new products much more heavily than they do the risks of forgoing those new products. There tends to be an institutional bias in regulatory agencies that predisposes decision-makers to avoid approving products that could later be more harmful than beneficial, and to play down the human cost of keeping products off the market. This problem too needs to be addressed if we truly want to maximize safety.
But, the precautionary principle takes this inadvertent bias and formally institutionalizes it. Perhaps more importantly, unlike U.S. rules that are precautionary in nature, there exists no formal mechanism within the precautionary principle for preventing or rectifying arbitrary decisions.
In the United States, the extremes of our precautionary outlook are tempered by two things:
(1) Many of the underlying statutes actually require benefits to be taken into consideration when setting policy, and
(2) There is a well-defined body of administrative law that provides for judicial review of regulatory decisions that are alleged to be arbitrary and capricious.
Although they aren’t perfect, the effect of these safeguards is to reign in much of the political abuse that is characteristic of the precautionary principle.
If we genuinely care about making our world safer, we must require regulators to consider both the risks of rushing headlong into the future and the risks of staying too long in the past. Until advocates of the precautionary principle can:
- Agree upon a single definition
- that prevents arbitrary application,
- provides for legal redress of mistaken decisions,
- and is equally cautious about the potential risk of over-regulation, we have to reject it.