By Ross Korves
The PP became prominent in the EU in the last decade of the 20th century as an overarching philosophy of prudent caution in environmental programs. The authors state “The PP is based on the everyday aphorism that it is better to be safe than sorry and that some degree of precaution is appropriate, indeed essential, for any meaningful regulatory program.” The PP attempts to make explicit the typically implicit application of precaution and increase the amount of precaution applied. Some argue that the PP should only be applied in risk management after a scientific assessment of risks has been performed.
In recent years the PP has encountered criticisms that it is antiscientific and economically damaging. The U.S. has steadfastly refused to accept the PP as a formal requirement at the federal level, but the authors note that the PP thinking has crept into pesticide regulations. The WTO dispute resolution process rebuffed the EU’s attempts to use the PP to justify restrictions on biotech commodity and food exports from the U.S., Canada, and Argentina. Even the EU courts are increasingly constraining the PP by requiring its application to be preceded by a scientific risk assessment. In 2004 the EU Commission rejected calls for a moratorium on nanotechnology stating that the “Precautionary Principle, as used up to now, could be applied in the event that realistic and serious risks are identified”.
The authors believe the three most common criticism of the PP are: the ambiguity and lack of definition; the arbitrariness and unprincipled ways it has been applied; and the bias against new technologies. There is a lack of an official definition and important variations in unofficial versions, none of which has application precedence. None of the unofficial definitions answer essential questions necessary for rational risk regulation like the evidence needed to trigger action, the acceptable level of risk, opportunity costs of risk reductions, and how “risk-risk” trade-offs should be factored in.
The PP is cited in regulatory decisions that likely would have been made without the PP, but the authors believe “in other cases, political factors appear to be the only explanation for why the PP is applied to some risks but not others.” The PP was used to justify protectionist trade policies by Norway and the Netherlands in banning Kellogg’s Corn Flakes® because the added vitamins could potentially harm susceptible individuals. This was eventually struck down by a court ruling. The PP also seems to be applied for political reasons when NGOs target products like biotech commodities and food made from them when the PP is not applied to products with similar environmental and health risks not produced with biotechnology.
It is not surprising that the PP would be applied more to new technologies and products since the focus of the PP is new risks when there are significant uncertainties. As a general rule, new technologies and products are usually safer and have lower risks than the ones they replace. Favoring the status quo often means higher risks. New technologies present potential environmental and health benefits in addition to possible risks and it is not obvious that restricting a new technology under the PP will increase or decrease risks. The authors conclude “if taken and applied in its more stringent formulations, the PP will suppress innovation, to the detriment of both the economy and human health.”
Case studies are included on U.S. regulation of agricultural chemicals, biotech foods and food irradiation. In the case of agricultural chemicals the authors explain that a ‘precautionary approach’ is used. “During registration, the EPA must ensure that the pesticide will cause no unreasonable adverse effect on human health or the environment once the product is registered and used according to label directions.” Unless the data show that the pesticide is not allowed to be sold. The authors see gene transfer in biotech crops not being inherently new or as uncertain as the application of the PP supposes. The risks are in specific constructs and the environments where released rather than in the gene transfer itself. Food irradiation suffers perception that all nuclear technologies are dangerous and irradiation is defined as an additive rather a process.
The authors conclude “Notwithstanding its swift rise in the international arena, the PP has serious shortcomings and does not, at least in its current form, provide a coherent, rational, and defensible basis for risk management decisions. As the record and case studies summarized earlier demonstrate, the PP is flawed. Without a workable definition and agreed-upon criteria for its application, the PP’s employment to date, including in the food context, has been dictated more by political influences than scientific factors.”
This does not mean that appropriate risk management is not important in the TTIP trade agreement or that some magic approach is available to avoid making hard choices. The PP can at least partially be credited with increasing attention on the proper amount of risk management for specific situations.
Adequately feeding 9.1 billion people in 2050 will require food production to increase by 70 percent from today’s level. It will require the adoption of new technology and new products to increase yields per acre where scientific assessments will be needed to measure the risk of new technology against the risk of doing nothing at all. If the negotiators of the TTIP agreement could settle on a regulatory framework based on science for the U.S. and the EU economies, they would make an invaluable contribution to the rest of the world.