The Politics of Precaution

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Explaining the shift in US and European approaches to risk regulation.

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Beginning around 1990, a significant transatlantic shift in the relative stringency of risk regulations of the United States and the European Union occurred. Between 1960 and 1990, the health, safety, and environmental standards issued by the United States were likely to be more risk-averse, stringent, innovative, and precautionary than those adopted by both individual European countries and the European Union. Examples include U.S. pesticide approvals and other food safety regulations to restrictions on ozone-depleting chemicals, automotive emission standards, chemical safety standards, and criteria for the approval of new drugs.

However, regulations adopted by the EU since 1990 are more likely to be more stringent and comprehensive than those adopted—or more frequently not adopted—by Washington. Examples include the banning of beef and milk hormones as well as antibiotics in animal feed, restrictions on the planting and consumption of GMOs, REACH – the EU’s comprehensive chemical safety regulation, RoHS – the European ban on hazardous materials in electronic products, cosmetic safety standards, and global climate change regulations. Most recently, the EU has banned BPA in baby bottles, while the U.S. Food and Drug Administration continues to permit its use.

Global regulatory leadership has palpably passed from Washington to Brussels. While the U.S. previously played a leadership role in initiating and supporting new environmental treaties, more recently the EU has advocated and adopted several important new environmental agreements that have not been ratified by the U.S. Due to both the EU’s relatively stringent regulatory standards, as well as its position now as the world’s largest single market, the regulatory policies of many other nations are now based on those of the EU rather than the U.S.

What accounts for this dramatic regulatory policy change on both sides of the Atlantic since 1990? As identified in my new book, The Politics of Precaution, three, related causal factors explain the shift.

The first has to do with the extent and intensity of public pressures. Since around 1990, “alarm bells” identifying politically unacceptable risks have rung more frequently and loudly in Europe than in the U.S. Survey data suggest that Americans have become more satisfied than Europeans with the regulatory status quo: while Republican efforts since the mid-1990s to weaken existing health, safety, and environmental regulations have been generally unsuccessful, so too have efforts by NGOs and Democrats to significantly strengthen them.

The second factor stems from the preferences of policy-makers. Through 1990, there was often considerable bi-partisan support for more stringent risk regulations in the U.S., with some of the most significant expansions of federal environmental regulation occurring during the presidencies of Richard Nixon and George H.W. Bush. More recently, federal regulatory policymaking has become highly polarized along partisan lines. Strong congressional Republican opposition to federal environmental regulation dates from the mid-1990s and continues through the present. By contrast, EU policy elites have chosen to link the expansion of the single market to the continuous strengthening of European regulatory standards. The EU’s “greener” member states, namely Germany, the Netherlands, Denmark, Austria, Finland and Sweden, often with support from Great Britain and France, have effectively supported more stringent EU standards, while the European Parliament has arguably become the world’s “greenest” legislative body. However, regulatory policymaking in Europe has not become polarized along partisan lines. As was previously true in the U.S., influential right-of-center European policymakers at both the national and European level have often supported more risk-averse health, safety, and environmental standards.

The third causal factor focuses on differences in the legal and administrative criteria for making and approving risk regulations. In part as a response to influential claims by policy analysts that many previous regulations adopted in the U.S. were unnecessarily stringent, American administrative procedures and legal rulings have increasingly emphasized the need to subject new rules to stringent risk assessment criteria. While American regulatory procedures have focused on avoiding the risks of false positives, Europeans, faced with a series of policy failures widely attributed to insufficiently stringent regulations, have made the precautionary principle into an influential approach to risk assessment and management. A critical purpose of the precautionary principle is to reduce false negative policy errors: it facilitates the ability of regulatory officials to impose bans on and to delay the approval of new technologies whose risks are perceived as “uncertain.”

Nonetheless, European standards have influenced those in the U.S. This effect has taken place through two mechanisms. First, faced with the paralysis of much regulatory policymaking at the federal level, many American states, most notably California, have adopted a wide range of risk regulations similar to, influenced by, and often modeled on those of the EU. Second, many global firms have chosen to adopt European consumer safety and environmental protection standards for all their products, including those sold in the U.S. According to U.S. Department of Agriculture rules, food sold as “organic” in the U.S. already meets all European food safety standards. Similarly, several state and local governments have followed the EU’s lead by banning BPA, and many companies have voluntarily phased out its use. State policy initiatives, along with these market responses, may have played a role in reducing public pressures for more stringent federal standards.

Many American activists would like the U.S. to change its regulatory policies to make them more similar to those of Europe, while many business firms on both sides of the Atlantic would like the EU to adopt more “scientific” American regulatory procedures. My new book, is a work of analysis, not advocacy, so I leave it to readers—and citizens of the U.S. and EU—to decide whose or which regulatory policies are more or less welfare enhancing. Those policies, after all, are the central focus of the politics of precaution.

David Vogel is a professor in the Haas School of Business and the Department of Political Science at the University of California, Berkeley. He is the author of The Politics of Precaution: Regulating Health, Safety, and Environmental Risks in Europe and the United States (Princeton University Press 2012).