Global Business Briefing, July/August 2014 / Europe
Written by Axel Singhofen, health and environment advisor, Greens/EFA group
The last 12 months have seen a surge of attacks against the EU’s precautionary principle. Some law firms consider it as a potential obstacle to the Transatlantic Trade and Investment Partnership (TTIP), and UK Conservative MEP Julie Girling considers that “the EU’s expanding embrace of `precautionary’ regulation… may well be the biggest threat” to an agreement being signed off.
Last October, 12 CEOs of mainly chemical companies wrote to the presidents of the European Commission, Council and Parliament, calling for the formal adoption of an “innovation principle” as a counterbalance to “precautionary legislation”, because they were concerned that “the necessary balance of precaution and proportion is increasingly being replaced by a simple reliance on the precautionary principle and the avoidance of technological risk.”
Some academics even conjure up a “precautionary impasse in Europe”, claim an “apparent gap between evidence-based analysis and expert-informed recommendations, and policy decisions that can seem disconnected from both”, and conclude there is “a necessity for change in light of the impracticability of a status quo that leads to scattered ill-thought out bans”.
And they seem to get the ear of professor Anne Glover, chief scientific advisor to Commission president José Manuel Barroso, who has stated publicly that she is concerned about the “inappropriate use” of the precautionary principle (CW 7 November 2013).
Do we really suffer from an inappropriate use of the precautionary principle?
Authoritative evidence on the use – or rather neglect – of the precautionary principle comes from the Late lessons from early warnings report, published last year by the European Environment Agency (EEA). This documents many cases in which societies failed to act in time to prevent serious harm to health and the environment. It finds that “if the precautionary principle had been applied on the basis of early warnings, justified by ‘reasonable grounds for concern’, many lives would have been saved and much damage to ecosystems avoided.” It also illustrates the reduced harm and stimulus to innovation that precaution can bring. And it showed that over-regulation due to the precautionary principle is the exception, whereas under-regulation is the rule.
So what is behind these multiple attacks on the precautionary principle? What are the allegedly “ill-thought out bans” that are referred to? It seems that recent measures that have upset the industry are the 2013 ban of three insecticides due to their risk for honeybees, and the Commission’s work on determining criteria for endocrine disrupting chemicals (EDCs).
According to the 2009 Regulation on plant protection products, EDCs should no longer be allowed to be used as active substances in pesticides, unless certain derogations apply. The European pesticides industry association (ECPA) had desperately tried to stop the adoption of any cut-off criteria during the legislative process – be they for EDCs or substances that are carcinogenic, mutagenic or reprotoxic (CMRs) – but had failed. What was left to them was to make sure that the future EDC criteria do not bite.
With TTIP on the horizon, a new opportunity arose last year for the ECPA to mobilise through its US counterpart against meaningful criteria for EDCs. In May 2013, CropLife America wrote to the US Trade Representative, citing the neonicotinoid ban as an example of the “abuse of the precautionary principle by the EU” and describing as “highly problematic” the “categorisation of chemicals as endocrine disruptors currently taking place” as “this runs counter to the science-based risk assessment approach used by the US Environmental Protection Agency”.
And their arguments were fully taken up in this year’s report on technical barriers to trade by the US Trade Representative – which by its own admission was “created to respond to the concerns of US companies, farmers, ranchers and manufacturers, which increasingly encounter nontariff trade barriers in the form of product standards, testing, and other technical requirements as they seek to sell products and services around the world”.
Is the EU really running rampant, disregarding science and going for ill-thought out bans?
The first warnings about the adverse effects of neonicotinoids on honeybees are from 1996. The EU temporary ban of neonicotinoids is based on the latest two-year review of the science by the European Food Safety Authority, which found clear risks for honeybees. Who is disregarding science here?
The hazards of EDCs were first summarised for policy makers in the report on the Commission’s 1996 workshop in Weybridge. Since then, leading scientists have expressed their increasing concern about the rise of endocrine-related diseases in the EU and globally (WHO/Unep 2013), and have called for regulatory action (2013 Berlaymont Declaration).
A joint attack on the Commission’s activities with regard to criteria for EDCs by 18 editors of toxicology journals was thoroughly rebutted by scientists in the field. They pointed to the perplexing ignorance of the editors about the crucial irreversible adverse effects of endocrine disruptors, arising from their interference with developmental processes. In light of this evidence, isn’t it wise to avoid using EDCs in mass chemicals sprayed on our lands and food-growing cultures, unless there is a serious danger for plant health that cannot be controlled by any other means?
In the complex field of health and environment protection, simple links between cause and effect are the exception. Risks, of course, need to be assessed to a reasonable extent. However, the problem comes when only fully quantified risk assessments count, and when qualitative risk assessments are dismissed as “hazard-based”. In light of the inherent limits of science (and of available resources), those who call for complete quantitative risk assessments on each co-causal factor and their interconnections, before any regulatory action, actually call for no action.
Cost-benefit analyses add another safety net for the industry: while short-term costs to business can be identified, long-term benefits of regulatory action are often impossible to quantify (for example, reducing health impairments or maintaining eco-system services). This leads to a significant imbalance in favour of short-term interests of industry.
All of these issues have been described in detail before. The real issue at the heart of these controversies is a very simple one – it is all about economics. The EEA report showed that “in virtually all reviewed cases it was perceived to be profitable for industries to continue using potentially harmful products or operations”. European pesticide manufacturers have taken dozens of court actions against non-approvals of active substances – non-approvals which were based on comprehensive risk assessments.
This indicates that it is all about business, not about hazard versus risk – a false dichotomy decried by industry advocates in an attempt to discredit EU efforts to protect public health and the environment. The aim of the call for “sound science” is still the same as when it was originally designed by the tobacco industry: “to manipulate the standards of scientific proof to serve the corporate interests” (American Journal of Public Health, 2001).
The real dichotomy is between public versus private interests, between power of the regulator versus corporate control. In 1990 in the US, a landmark court judgementstopped the EPA from adopting a ban of asbestos in almost all products. But the consequences were far larger: with this judgement, the court raised the level of evidence (to be provided on the risks and on the costs and benefits for a restriction) so high that it basically made it impossible for the EPA to restrict chemicals in commerce through regulatory means from then on. It is exactly this disempowerment of the US regulator that industry on both sides of the Atlantic now tries to achieve in the EU via “regulatory co-operation” under the TTIP in the name of the seemingly reasonable call for “science-based risk assessment”.
Due to the particular meaning of science-based decision making in the US, it is still in the last century when it comes to chemical control. It has consistently opposed REACH and EU restrictions of chemicals. And it is an outsider in international chemical policy: unable to ratify the lowest common denominator of UN chemical treaties, such as the Stockholm and Rotterdam Conventions, due to shortcomings in US laws on chemicals, and unwilling to change that. This is not a very good reference for regulatory co-operation.
Unhappy with the entrenched adversarial positions, professor Glover recently suggested a new structure to the Commission as a possible way forward.She seemed to suggest that the problem lay with the way that the Commission gathers evidence, and that this could be solved if the scientific assessment was separated from those in charge politically. However, this fails to acknowledge that the key question remains: what strength of evidence is necessary to justify a certain action: reasonable grounds for concern, proof beyond reasonable doubt or full proof beyond any doubt? This decision is inherently political, and a function of many factors, including the nature and scope of the potential harm, those likely to be affected, the uncertainties involved, and the availability of safer alternatives. Vested interests will always call for the highest, if not impossible, levels of evidence – yet, the EEA report makes a very convincing case “for taking early warning signals more seriously and acting on lower strengths of evidence than those normally used to reach ‘scientific causality’.”
The current trench warfare between public and private interests is likely to continue, unless we integrate the hazards to health and the environment from industrial products into business decisions. As long as it remains profitable to sell chemicals that are not safe to use, it is no wonder that companies will oppose any restrictions on their business. Policy makers should create the conditions for businesses to meet the needs of both society and shareholders. The burden of proof must be reversed, external costs need to be internalised through taxes and charges, and plausible future damage must be minimised, eg by the use of anticipatory insurance bonds that are refundable if no harm ensues. Innovation, the latest buzzword of industrialists, cannot be a goal in its own right: what we need is innovation for sustainable development. We should move from quantitative risk assessments that unduly slow down regulatory action, and, thus, mainly help to defend “business as usual”, to comparative assessments that can show the way forward, involving a wider range of stakeholders.
The EU is at a crossroads: do we want a regulatory system that works for the benefit of all, or one that only suits short-term economic interests at the expense of human health and the environment? The outcome of the TTIP negotiations will decide which road will be travelled.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.