Risk In EU Legislation: The Snake Inside Or Outside The Box
June 1, 2016
By FTI Consulting
There are many words which have different meanings in the UK and the US. While some are well-known – few people would expect a round ball when watching American football – some are more subtle. For example,
many British (and continental Europeans in their various languages) often associate the word risk with danger and peril while for Americans it is more closely linked to opportunity, especially in the world of finance. General European risk-averseness has played a part in shaping the EU, its treaties and its regulations, especially the ones governing chemicals and other potentially toxic materials.
What Is Risk?
Although risk and hazard are sometimes used interchangeably, they are fundamentally different. Anything that can cause harm represents a hazard, whereas risk describes the chance of harm being done – in terms of both the likelihood of harm, and the extent of that harm. To illustrate with an example: a venomous snake in your bed is a hazard and a big risk. The same snake in a locked terrarium is still a hazard as its intrinsic properties are the same, but the risk has been minimised.
Fear Of Flying (And Of Snakes On A Plane)
In 2012, 54,439 persons were killed in road accidents in the EU-27. In comparison, in the same year there were 16 “injury accidents” due to aviation. However, people are more prone to fear flying than getting into a car.
This is due to the fact that people in general (on all sides of the Atlantic and the Pacific) are not well-equipped to properly calculate risk. While danger is an instinct, honed over years of evolution, risk is a cold mathematical equation. To go back to the snake: nearly one third of all adults are believed to have an intense fear of the reptiles. This is likely explained by the fact that many an ancestor was probably killed or at least painfully injured by a snake which has led to an ingrained fear or at least respect of snakes as dangerous creatures. However, the actual risk that a chance encounter with a snake poses is dependent on many factors – e.g. the strength of its poison or if it was spooked by your presence – and is impossible to accurately calculate; especially when you are frozen stiff with fright. There is another complicating factor when calculating risk: the benefit that any action involving risk can bring, i.e. risk vs benefits. All this results in a significant inability to successfully gauge most risks accurately, as we are seldom to never aware of all elements in the equation – even if we were capable of handling the maths. So we could be forgiven for feeling more uncomfortable sitting in an aluminium box hurtling through the air, than one that is merely speeding down asphalt.
Risk In EU Regulation
Given the helplessness of most people in the face of higher mathematics, policymakers have stepped in to protect citizens from danger as best they can, while also trying to ensure that they reap the benefits of new innovations. This is done by ensuring that potentially harmful substances, especially chemicals, are regulated.
There are two approaches to regulating chemicals: the risk-based and the hazard-based approach. As its name indicates, the former is based on an assessment of risk, which includes hazard identification and characterisation as well as an appraisal of exposure to the chemical in question.
Most European regulations dealing with chemicals include at least an element of risk assessment where the risks, i.e. the hazardous properties and the likelihood of exposure are weighed against the benefits. However, the aforementioned European risk-averseness has been embedded into the fibre of the EU by adding the precautionary principle to Article 191 of the Treaty on the Functioning of the European Union:
“Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”.
The precautionary principle is not defined in the treaty itself, but in the official EU glossary it is explained as relating “to an approach to risk management whereby if there is the possibility that a given policy or action might cause harm to the public or the environment and if there is still no scientific consensus on the issue, the policy or action in question should not be pursued. Once more scientific information becomes available, the situation should be reviewed.”
In practice, the regulation of chemicals is more complex. EU lawmakers are, as in all democracies, beholden to their citizens. And European citizens, either collectively as part of an NGO or individually via social media, are especially active when it comes to food safety and chemicals. As Andreas Hensel of the German Federal Institute for Risk Assessment (BfR) points out, everybody must eat and so the playing field for “intuitive toxicology ” is rather big.
There is also a strong tendency in this community to equate ‘natural’ with ‘good’ and ‘chemical’ with ‘bad’.
This simplified worldview is effective for mobilising campaigners and the media, as a recent outcry in Germany showed when the herbicide glyphosate was found in beer. This position however ignores the fact that some natural substances can be just as or even more dangerous than synthetic ones. A pinch of tarragon, for example, has the same potential to cause cancer as a cigarette. And where chemicals are found in food, most of the time they are well within acceptable safety levels: much to the relief of many Germans, the BfR gave the all- clear for beer stating that for the glyphosate to be harmful an adult would have to drink more than 1000 litres of beer a day.
This does not mean that the European Commission or the European Parliament should ignore the concerns voiced by or through NGOs and not apply the precautionary principle where warranted. It would however be worrying should the precautionary principle to be used as a political tool.
Arbitrary application of any law leads to uncertainty which is bad for consumers and businesses alike. Consumers should be able to trust that food in the supermarkets complies with consistent standards and businesses, especially in the chemical sector, need legislative certainty when investing into R&D for products which will likely go to market ten years down the line.
…Or The Voice Of Reason?
Interestingly enough, the Parliament – which is the most democratic institution of the EU and therefore at times prone to populism – followed the assessment of the European Food Safety Authority (EFSA) and supported a (non-binding) motion calling for a renewal of glyphosate for seven years. EFSA had issued an opinion stating that glyphosate was “unlikely to pose a carcinogenic hazard to humans”, in direct opposition to the conclusion of the WHO’s International Agency on the Research of Cancer (IARC). The IARC classified glyphosate as “probably carcinogenic to humans”, the same category as the consumption of red meat. Also showcasing the complexities of risk assessment is the fact that a few weeks ago a joint FAO/WHO meeting on pesticides came to the conclusion that “glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet”.
While the seven years renewal period is a compromise as if falls well short of the 15 years proposed by the European Commission and the actual renewal period will be determined by member state representatives, the vote can still be interpreted as a win for risk-based policy-making.
The Members of the European Parliament who voted for an approval most likely not only took into consideration the fact that the weed killer is toxic, but that exposure can be minimised by good agricultural practices and that the substance also has substantial benefits.
Most daily decisions are based on a rudimentary risk assessment: getting out of bed in the morning makes it more likely to face hazards, but there are also a large number of perks.
For the risks we cannot control directly, such as which chemicals are used in our food, the European regulator has created one of the world’s most stringent regulations to safeguard human health and the environment. Put simply, Europeans are safe. At least as safe as they can be without staying in bed all day. Having said that, the ceiling could always fall down…
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting LLP, its management, its subsidiaries, its affiliates, or its other professionals, members or employees.
Caroline Vogt is Senior Consultant in FTI’s Agri-Chemicals and ChemicalsTeam.
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