Alberto Alemanno

Safety of Plastics: Let's talk about it

Alberto Alemanno

The first entry of the blog was kindly provided by Alberto Alemanno, Jean Monnet Professor of EU Law and Risk Regulation, HEC Paris and Global Professor at New York University. He will speak on 5 November on the topic "The divergent approaches to risk regulation between EU and the US”. 

Science, Politics and Industry

1. What should be the role of science in policy making?
Science should be the privileged source of advice for policymaking. By providing risk managers with the ‘state of the art’ of regulatory science, scientific input should inform their decision and continuously enlighten their understanding of the phenomena that they aim at regulating.

2. What do you expect from policy makers? 

Policymakers are expected to identify all sources of knowledge capable of informing their decisions. In so doing, they should listen to the scientists, the relevant industries, NGOs and civil society. The more they listen the better. The legitimacy of their decision depends on their ability to have listened and blended the input received.

3. Can you define robust science vs. non-conclusive science? 

Not all science is the same. Only science that lies on generally accepted principles and methodologies deserve to be considered in policymaking. Yet given the inherent dynamic nature of the scientific process policymakers should be capable to understand the need to also listen to minority opinions and new emerging trends. It is only by doing justice to the complexities of science that policymakers will serve society.

4.  Is industry funded research to be trusted?

When opposed to ‘publicly funded science’, industry funded research emerges today as the dominant source of advice for policymakers. The ensuing dominance combined with a perception of pro-industry bias nurture in the public a feeling of scepticism. While this is often justified, it would be erroneous to rule out the whole industry funded research for the only fact of being sponsored by those who have a stake in the outcome of that science. However, the challenge to render industry funded research credible and acceptable by society belongs to the industry itself. Here there are several techniques available today. A transparent and inclusive design for the different studies might be a good beginning together with a careful selection of the scientists involved. 

5. How to avoid conflicts of interests hampering the credibility of independent agencies?

There is only one answer to this question: more transparency and openness by all stakeholders involved: from the industry to the agencies themselves.

The divergence approaches to risk regulation between the EU and US

6. Does culture affect how we approach legislation? Can you give examples?

As illustrated by many of the classic disputes of the past (e.g. Hormone beef, Biotech, Chlorinated water), culture offers a powerful lens to understand many of the regulatory divergences existing across the Atlantic. Hence the current difficulties in conceiving within the TTIP negotiations a possible mechanism capable of promoting regulatory convergence around risk issues. However, culture should not be used as an excuse to postpone a meaningful debate upon how to reconcile our visions upon the notion of risk, safety, equivalence and mutual recognition. Rather, after decades of mutual mistrust, time has come to also discuss about how culture may be internalised in our respective regulatory systems. It is only by integrating, by rendering it transparent, the cultural factors within the risk regulatory decision-making that we will be able to overcome our historical differences. I have been writing about how to do so over the last couple of years. My claim is that too often policymakers prefer to hide non-scientific argument as scientific in order to pass muster of the WTO scientific requirement. This is obviously a pervert approach but which - unfortunately - was induced by a narrow reading of the WTO Agreements.

How to deal with unintended consequences of precautionism?

7. When should the precautionary principle be applied?

The precautionary principle is one of the dominant features of the EU risk regulatory system. This is not to suggest that other legal orders such as the US do not rely on a regulatory philosophy mimicking such a principle. Time has come to go beyond the rhetoric of precaution as an abstract principle and test the reality of precaution in practice. Challenging conventional wisdom about European and U.S. approaches to risk regulation, the recent study by Jonathan Wiener et al. finds that since the 1970s there has been little transatlantic difference in the overall level of precaution, but that instead there have been variations in precaution across particular individual risks. For example, while Europe has been more precautionary regarding genetically modified foods, beef hormones, toxic chemicals, and climate change, the U.S. has been more precautionary regarding mad cow disease, air pollution, ozone depletion, and terrorism. Moreover, both the U.S. and Europe have adopted systems of regulatory oversight through impact assessment.

This illustrates that the precautionary principle, like any other risk management principle, should be applied only when its conditions of application are met. These were codified by the Commission Communication in 2000 in the aftermath of the Hormones dispute : this is unfortunately a policy – as opposed to legal – document that has clearly not survived its time. I have been encouraging the EU Commission to be brave enough to revise and revamp this document.

8. How can the precautionary principle enhance innovation?

This has been and remains one of the central questions of my risk regulation’s scholarship over the last 10 years. As I had the chance to theorise and illustrate in several contexts (e.g. GMOs, nanotech, volcanic ashes, neonicotionoids) the only chance for the precautionary principle to remain a credible feature of EU risk regulation is to ensure that its invocation remains within the limits established by the EU legislator. What is more, there is a clear need for EU Courts to show less deference towards the scrutiny of science-based measures inspired by the precautionary principle. Too often the judges appear ready to give up their authority when called upon to exercise judicial review of those measures and rather prefer to defer this judgment to the policymakers. In so doing, they do not only loose authority over the policing of this principle but also contribute to weaken (thus watering down its normative content) the precautionary principle.

Is innovation possible in risk averse society?  

9. Is Europe risk averse?

Claiming that Europe is risk averse sounds an overstatement, especially in the light of the empirical difficulties to substantiate it. As mentioned above, studies focusing diachronically on the evolution of the use and invocation of precaution demonstrate that this has not been (nor is) the case. However, the very same studies suggest that, due a combination of factors, the EU has embraced in recent years an approach to the regulation of risk that appears particularly averse to both new technological developments and old applications. While it remains to be discussed and studied why this is occurring, it appears clear that several institutional features of the actual EU decision-making system, such as the European Parliament, too often operate as ‘social amplifiers of risk’. The abusive use of the precautionary principle also plays a role in this dynamic together with a lack of rigorous approach to its interpretation by several actors including NGOs.

10. Do we need to take risk to be innovative?  Historical record shows that this is the way to go. There do not seem to exist many alternatives.

Health and Safety for Competitiveness

11. What would be your message to policy makers when it comes to the precautionary principle?

As discussed above, the credibility of the precautionary principle is at stake today. This is largely due an unpredictable invocation of it typically in highly salient risk situations. Time has come to take the precautionary principle seriously. This is true for all actors: NGOs, policymakers and Courts. The precautionary principle – to quote former Commissioner David Byrne when presenting the 2000 European Commission Communication – cannot become a ‘jolly’ to be invoked every single time there is some fear vis-à-vis a substance or an activity. In any event, according to the same Communication, the invocation of the principle should be “based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis) ”. Unfortunately very few non-legislative acts today are subject to a formal impact assessment. Given the significant number of non-legislative acts adopted every year (around 2000 as opposed to 50-70 legislative acts), there is clearly a case for a more systematic performance of impact assessement on these items.

12. Can innovation (therefore, competitiveness) be possible with the application of the precautionary principle?

The precautionary principle as such is not – despite its current critics – inherently biased against innovation. It is only its current interpretation and use by both policymakers and courts that has led to a progressive denaturation of its normative content. Precaution and competitiveness are not enemies but should – in any post-modern civilization – be reconciled to the benefit of society.

13.  In an ideal world, the scientific community, policy makers and industry should work together in order to guarantee the safety and health of all consumers, or should have be a healthy distrust between them to secure the health and safety of consumers? 

A healthy distrust among actors whose objectives are too often divergent is – and should remain – one of the main features of any risk regulatory regime. However, given the ‘healthy’ nature of such a relationship, the ensuing tensions should not prevent some dialogue from occurring. Unfortunately the current debate surrounding risk regulation is just too polarised to allow any meaningful dialogue. This is regrettable to the extent each actor necessitates the cooperation of the others to attain its own objectives: policymakers needs to acquire information from the industry and the industry needs the Commission’s ears to obtain its optimal level of regulation, policymakers need NGOs’ involvement to legitimise its choices and the NGOs necessitate in turn the Commission to obtain regulatory action, etc.

Dialogue however is not a ‘silver bullet’: it must be construed through time by policymakers who carry the burden in creating the conditions for having all actors buying into it.