TCS Daily

How Long Can an Emergency Last?

By Bill Durodii - May 28, 2003 12:00 AM

On 19 May, the European Commission renewed for an astounding 14th time a 'temporary' ban on the use of certain softening agents, known as phthalates, in toys intended for use by children under the age of three. This 'emergency' ban, first introduced in December 1999, appealed to the so-called 'precautionary principle', which suggests that when any doubt is raised, products can be assumed harmful and withdrawn from use, pending conclusive evidence to the contrary.

Proving no harm however, is tantamount to having to prove the non-existence of God. The onus should be on those who make such a claim to prove it. Thus 'precaution' stands accused by its detractors of being a covert trade barrier, as well as being open to political abuse and stifling innovation. Worse, experience of the actual application of the 'principle', as can be seen from the phthalate softeners case, shows it to be in breach of its own supposed rules.

Foremost amongst these, in the Commission's own articulation, are the stipulations that where any action is deemed necessary, this should be 'proportional', 'consistent' and 'subject to review'. Yet an outright ban for an indefinite period, impacting on a family of compounds some of which have exposure levels 'below the detection limit' and been shown to pose no risk, would seem to be in breach of all of these requirements. It begs the question; 'How long can an emergency last?' as well as raising uncomfortable issues to do with due process within the Commission services.

Since first introducing its restrictions on these products, the Commission, in accordance with its guidelines, sought further research to position the ban on a firmer, scientific footing. What seems to have happened, however, is that the politicians and bureaucrats did not get the answer they wanted to hear. So since the European Parliament first examined the issue in July 2000, there has been no further progress on the policy front, despite numerous studies revealing not only that there was little risk from any of these products, but that the hazards involved had been misidentified in the first place.

This confusion is because proper application of the 'precautionary principle' demands an appeal to worst-case scenarios. Accordingly, as early as 1997, models began to be devised to analyze what would happen to a child were he or she to chew on a piece of plastic for up to 12 hours in any one day. It was assumed that such a child could extract and ingest a significant percentage of the phthalate softener contained within the piece. And it was further assumed that the impact of this absorption upon humans could be compared to, and extrapolated from, that found within rodents exposed to very high doses of the compound over prolonged periods.

In relation to the product most commonly used in toys, di-iso-nonyl phthalate (DINP), all of these assumptions have been found to be wanting. Exposure times were lowered from 12 hours to eight and then to six. More recently the US Consumer Product Safety Commission (CPSC), having obtained yet another study, found that even the 180 minutes a day, the European Commission's own Scientific Committee (CSTEE) by then adhered to, was 'a gross exaggeration'. Actual observation of 169 children by trained observers revealed such chewing to last typically less than two minutes per day.

Over the same period, a specially convened panel also concluded DINP posed no risk of cancer or reproductive and developmental harm. Parallels with rodents force-fed plastic or injected with softener were found to be wanting, as well as scientifically fallacious. Yet remarkably, the CSTEE has disagreed with the latest technical risk assessment, holding to values produced in a now outdated CPSC report. If such worst-case data based upon hypothetical models are held to be more significant than the actual evidence obtained since, one can safely assume precautionary decisions to be irrevocable. Scenarios rule.

Worse, when a majority of member states, exasperated by the incessant procrastination, decided to go ahead and ratify the new, more moderate risk assessment, irrespective of the CSTEE's precautionary view, the European Chemicals Bureau, which manages this process for the Commission, took the unprecedented step of posing further technical questions and asking them to reconfirm their position. Since then, and despite the countries reaffirming their collective decision, the final report aimed at obtaining a definitive decision has failed to re-emerge. Lame excuses regarding the need for 'further work' and the failure to circulate papers on time have heightened suspicions as to political machination behind the scenes. Despite the Commission's desire to ensure 'trust', rumors abound.

But it is not politics that shapes all of this. Irrespective of the politicians and officials, as well as the three out of 15 member states which ignored the evidence that did not suit them, there remains a further barrier to be overcome for such never-ending 'emergencies' to be resolved. Businesses themselves, influenced by the wider climate of caution and restraint that dominates nowadays, have been keen to show how 'responsible' they can be by introducing their own voluntary bans.

The Danish environment minister, Hans Christian Schmidt, is on record as saying: "There is nothing that I would like more than to ban phthalates in all toys, right now, but everyone working with this also knows that it, unfortunately, is not possible." He has thus asked for, and is likely to obtain, new forms of self-regulation from the major retailers.

This is bad news for businesses well beyond the narrow confines of the chemical industry, yet it is business that now drives this agenda. How long can an emergency last? For as long as the precautionary principle and the culture of self-limitation that informs it prevail.

The author is Senior Research Fellow in the International Policy Institute of King's College London.

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