The precautionary principle is not the answer

29.sep.09
Food Law
Ronald L. Doering, Ottawa, Ontario

Food safety regulators cope every day with applying science-based
standards to complex fact situations. The task is tough enough when the
science is relatively certain but when the science is not so clear - and
this is far more common than is generally recognized - then the
regulator faces a truly daunting challenge. In recent years, the
precautionary principle has emerged as a recommended approach to deal
with uncertain science in a range of public health areas, including food
safety.
The Gage Canadian Dictionary defines precaution as "taking care
beforehand." This sounds like the simple common sense aphorism of
"better safe than sorry." But the concept has proven to be more
complicated than that: the Swedish philosopher Sandin has recently
documented no less than 19 definitions of the precautionary principle in
various treaties, laws and academic writings.
Beyond the definitional difficulties, the precautionary principle has
another fundamental flaw: it can be used to support any side of an issue
because it is all in how you define the hazard. If the hazard of DDT,
for example, were a possible threat to the environment, then the
application of the precautionary principle would be to ban the product
until the science is clearer. If the hazard is malariacausing mosquitoes
and the million persons killed (and the 300 million made seriously ill)
by malaria each year then wouldn't the principle support taking action
to continue to use the product until the science is more certain? A
principle that is this malleable cannot be a reliable guide to decision
making, but it is still often used as a justification for a decision
taken for other reasons.
I was reminded of this when reading recent articles reporting an Irish
study that reviewed the growing body of research showing a link between
high intakes of folic acid and a possible increased risk for colon
cancer. 
I was a food regulator in the mid-1990s when research began to show that
neural tube defects (NTDs), such as spina bifida and anencephaly, could
be significantly
reduced if pregnant women took folic acid supplements. Before resorting
to mandatory food fortification, Health Canada, concerned about the
health hazard to the general population, applied the precautionary
principle and sensibly began a pilot project to determine if there were
any adverse effects associated with food fortification, especially for
the vast majority of Canadians who would receive no benefit. Concerned
about the children with NTDs, the U.S. decided
they could not wait, applied the precautionary principle and made
fortification of white flour with folates mandatory. For trade and
political reasons, Health Canada rushed through a similar regulation,
effective Nov. 1, 1998. This is our
law today. (Applying the same precautionary principle, Britain and
Ireland declined to require mandatory fortification.)
The purpose of regulations is to establish tolerability and
acceptability for technological risk, but it's a risky business setting
standards and enforcing them when the science is uncertain. Society
needs to take a precautionary approach to adopting the precautionary
principle or we run the risk of being more sorry than safe. It poses
useful questions, but does not provide answers.
Ronald L. Doering, BA, LL.B, MA, LL.D, is a past president of the
Canadian Food Inspection Agency. He practices food law in the Ottawa
offices of Gowling Lafleur Henderson LLP, and can be reached at:
Ronald.doering@gowlings.com