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November 17, 2005


[Rachel's introduction: Europe's REACH chemicals policy will affect
U.S. corporations selling in the European market. Right-wing
extremists fear that Europe's embrace of a broader precautionary
approach will creep across the Atlantic.]

By Steven Milloy

As globalization fosters economic growth around the world, Americans
should be vigilant of an unintended consequence: the imposition on
U.S. businesses and consumers of the non-science-based,
environmentalist-promoted, European Union-embraced standard known as
the "precautionary principle."

The precautionary principle is the subject of a new Washington Legal
Foundation report entitled "Exporting Precaution: How Europe's Risk-
Free Regulatory Agenda Threatens American Free Enterprise."

Authored by Lawrence Kogan of the Institute for Trade Standards and
Sustainable Development, the report describes how "international
bureaucrats and influential activist groups use the precautionary
principle as a vehicle to diminish America's competitive position in
the global economy and advance special interest agendas hostile to
free enterprise and technology."

Kogan aptly calls the precautionary principle "regulation without

The precautionary principle is a scheme for establishing
environmental, health and safety regulations that are based on
irrational fears rather than empirical science.

Under the precautionary principle, activities, products and substances
may be banned or restricted if it is merely possible that they or the
processes used for their manufacture, formulation or assembly might
cause health or environmental harm under some unknown and unspecified
future circumstances. In other words: It focuses on purely
hypothetical risks rather than actual hazards.

The precautionary principle inherently rejects scientific and cost-
benefit analysis as bases for regulation. It is arbitrariness
unleashed in the hands of powerful government regulators and others
who have no use for facts or common sense.

Although the European Union expressly admitted that no evidence
indicates biotech foods are less safe than conventional foods, the
EU's precautionary principle-based Biosafety Protocol was used to
block more than $2 billion worth of U.S. biotech crop exports from
1998 to 2005, according to Kogan.

The EU's Cosmetics Directive bans the use of chemicals called
"phthalates" in cosmetic products even though no scientific data
suggest that consumer exposure to phthalates in cosmetics and personal
care products poses a human health risk. By also banning animal
testing on most cosmetics prior to consumer use, Kogan says, a
strictly applied Cosmetics Directive would run counter to U.S. laws
and regulations mandating animal testing of cosmetics classified as
over-the-counter drugs and require reformulation of almost all current
cosmetics products.

The EU also intends to make the garbage pail obsolete by presuming
that all trash is hazardous. Under the precautionary principle, EU
businesses must develop "life cycle management principles" that
include "take-back" provisions under which businesses must reclaim and
dispose of all new products put on the market upon their obsolescence,
mostly at business' expense.

The EU also applies the precautionary principle to industrial
chemicals, disinfectants, preservatives and global warming. Science is
out; capriciousness is in.

The tangible impact of the precautionary principle is immense.

"The administrative, financial and legal burdens imposed by EU
precaution-based environmental regulations are cumulatively equivalent
to a hidden business tax that, as of 1999, constituted as much as 15
percent of the new capital invested by certain European industry
sectors," writes Kogan.

The precautionary principle may help to explain why EU nations lag
behind the U.S. in economic growth. According to a June 2004 report
from the Swedish think tank Timbro, U.S. gross domestic product (the
measure of the value of the goods and services produced by a country
in a given year), was 17 percent higher than the nearest European
country, Switzerland.

There are also intangible costs associated with the precautionary
principle. Intellectual property rights are compromised because
confidential information must be shared among producers,
intermediaries and distributors in a product's vertical supply chain.
Labeling steers consumers to bureaucrat- and environmentalist-
preferred products, such as those labeled "eco-friendly," rather than
politically incorrect brand name goods.

It doesn't take too much to imagine the harm the precautionary
principle could do if imported into the U.S. as a legal standard.
Existing standards of negligence, strict liability, products liability
and public nuisance might go out the window in favor of legal outcomes
like the $253 million verdict against Merck in a recent Vioxx trial.

Although Merck had complied with all legal requirements for testing
and labeling and there was no scientific evidence supporting the
verdict, emotional jurors nevertheless wanted to send Merck and the
drug industry a precautionary principle-tyoe message: 'Stop doing the
minimum to put your drug on the market," Kogan points out.

And all this may be coming our way.

Kogan describes how American and European environmental and so-called
"social responsibility" groups operated fear campaigns to generate
public pressure for the EU to implement the precautionary principle.
Now, these same groups are using strict EU laws and regulations as a
platform for promoting similar regulatory change in the U.S.

Large multinational corporations, primary instruments of globalization
that are subject to EU regulation, are now trying to import those same
regulations back to the U.S. General Electric, for example, is subject
to the EU-adopted Kyoto Protocol, and is actively advocating that
Congress enact global warming regulation. Significantly hampered by
its self-inflicted wound, the EU supports U.S. adoption of the
precautionary principle as a means to become more economically
competitive with American products and services.

We ought to take action "to extinguish the complex threat posed by the
precautionary principle," Kogan writes. "The stakes are very high.
America's very enterprise system, individual freedoms and
international interests may be hanging in the balance."

Steven Milloy publishes and, is
adjunct scholar at the Cato Institute, and is the author of Junk
Science Judo: Self-defense Against Health Scares and Scams (Cato
Institute, 2001).

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