Precautionary Principle: Demanding Proof of a Negative

By August 4, 2008Briefly Legal

Among the bad precedents set in the just-passed H.R. 4040, the consumer product litigation and regulation bill, was the banning of six classes of phthalates (a plastic softener), and more specifically the “temporary” banning of the three forms of the chemical pending a safety review by regulators and the National Academy of Sciences. No matter that previous safety reviews by European and American scientific panels saw no reasonable danger of using phthalates in toys and nail polish.

So we now have the policymaking branch of government venturing even deeper into regulatory matters, for which it is ill-prepared; Congress responds politically, not scientifically.

Even worse, this preemptive prohibition represents an embrace of the “precautionary principle,” a regulatory standard that demands any substance be first proved safe before it can be used.

  • Sen. Dianne Feinstein (D-CA) said, “I believe this legislation is important as the first national effort to begin to exercise a precautionary principle in the use of chemicals as additives to products that affect human health. It is my belief that chemical additives should not be placed in products that can impact health adversely until they are tested and found to be benign.”
  • Also, the Pew Charitable Trusts’ Environmental Health campaign issued a release upon the CPSC bill’s inclusion of a phthalates ban: “That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.” 

Just the tip of the iceberg, eh? So let’s “temporarily” ban those 80,000+ chemicals, just to be safe.

Cass R. Sunstein, a prominent Harvard Law Professor, examined the precautionary principle in a recent Boston Globe column, “Throwing precaution to the wind“:

The central idea is simple: Avoid steps that will create a risk of harm. Until safety is established, be cautious; do not require unambiguous evidence. The principle, in its many variations, has come to play a powerful role in public debate, the development of government policy, and even international law. It can be, and has been, applied to countless problems, including nuclear power, cellphones, pesticides, electromagnetic fields, and even human cloning.

Yet the precautionary principle, for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks – and hence the principle bans what it simultaneously requires.

Indeed. What replaces phthalates? A substance with its own, perhaps unforeseen risks? Or is there no replacement, meaning some products will no longer be available in a malleable form? “Oh, we used to have a vinyl product that would have been perfect for that use, really durable, but well, Congress banned it.”

And if you embrace the precautionary principle, then cost can never be considered. The result is the preclusion of any sort of cost-benefit analysis.

As Sunstein says, the precautionary appeal is deeply incoherent. It asks for proof of a negative, an impossible standard to meet but one that offers endless opportunity for grandstanding and political attacks.



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